State v. Denoon

• Decision Date: 25 February 1888
• Citation: 5 S.E. 315,31 W.Va. 122
• Parties: STATE v. DENOON.
• Court: West Virginia Supreme Court

5 S.E. 315

31 W.Va. 122

STATE v. DENOON.

Supreme Court of Appeals of West Virginia.

February 25, 1888

Submitted January 12, 1888.

Syllabus by the Court.

When a druggist has spirituous liquors in his store, and a sale thereof is made in violation of the statute (chapter 107 Acts 1877) by this clerk, he will be responsible for the sale, and may be fined therefor, notwithstanding the sale may have been without his knowledge and contrary to his instructions to his clerk. ^[1]

Error to circuit court, Jackson county; R. F. FLEMING, Judge.

J. H. Riley and N.C. Prickett, for plaintiff in error.

Atty Gen. Caldwell, for defendant in error.

SNYDER J.

At the March term, 1886, John Denoon was indicted in the circuit court of Jackson county for selling spirituous liquors in September, 1885, without having a state license therefor as required by law. There was a demurrer to the indictment which was overruled by the court. No objection is urged here against the indictment, and as I can discover no substantial defect in it, we hold the demurrer was rightly overruled. The case was tried on the plea of not guilty; defendant found guilty, and the court gave judgment against him for a fine of $10 and costs. The defendant then moved the court to set aside the judgment and grant him a new trial, which motion the court overruled. The defendant excepted, and at his instance the court certified the facts proved, which are as follows: "The state proved that within one year next preceding the date of the finding of the indictment the prosecuting witness purchased in a drug store in Ravenswood in said county, kept by John W. Denoon, defendant, and Isaac Denoon, known as 'Denoon Drug Store' one-half pint of spirituous liquors, and paid therefor; that the purchase was made of a clerk in said drug store. The defendant, to maintain the issue on his part, proved by the defendant himself that he, the defendant, did not make the sale, and that the sale, if made, was made without the knowledge or consent of the said defendant, and that it was against his express orders and directions to make such sale, or any sale contrary to law; which was all the evidence introduced or heard by the court." The only question in this case is whether or not, according to the facts thus proved, the defendant is guilty under our statute prohibiting the sale of spirituous liquors without having a license to do so. The statute is absolute and unconditional. Its language is that "no person without a state license therefor shall *** sell, offer, or expose for sale, spirituous liquors, wine, porter, ale, or beer, or any drink of a like nature." Section 1, c. 107, Acts 1877, (same as section 1, c. 32, Code 1887.) It is claimed, however, by the defendant that as the sale here is shown to have been made, not by him but by this clerk, without his knowledge and contrary to his directions, he was wholly innocent of any wrong intent or purpose to violate the law, and therefore innocent of any offense. In support of this claim he cites and relies upon Anderson v. State, v. State, 22 Ohio St. 305; 1. Bish. Crim. Law, § 219; 3 Lawson, Crim. Def. 200, 217, 267-279, and cases there cited. These authorities seem to sustain the position of the defendant; but, on the other hand, the authorities are numerous to the effect that when statutes prohibit or command an act to be done without qualification, in such cases ignorance or mistake of fact will not excuse their violation. This is peculiarly the case in regard to statutes respecting revenue and police matters, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law in these cases seems to bind the party to know the facts and to obey the law at his peril. Many of the cases sustaining this view will be found annotated in a note to Farrell v. State, 30 Amer. Rep. 617, and the result there deduced from the cases is stated thus: " First, when to an offense knowledge of certain facts is essential, then ignorance of these facts is a defense; second, when a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense." Com. v. Emmons, 98 Mass. 6; Halsted v. State, 41 N. J. Law 552; State v. Hartfiel, 24 Wis. 60. I deem it unnecessary to express any opinion as to the weight of authority on this subject in other states, because I consider the law of the case at bar plain under our statutes and the former rulings of this court. In addition to the provision above quoted we have as a part of the same statute the following provisions: "A sale of any such liquors or drink by one person for another shall in any prosecution for such sale be taken and deemed as a sale by both, and both may be indicted and fined therefor, either jointly or separately." Section 13, c. 107, Acts 1877. And section 44 of same act declares "the provisions of this chapter shall in all cases be construed as remedial and not penal." Same as section 49, c. 32, Code 1887. In an indictment for selling intoxicating liquor to a minor under a statute which declared "it shall be unlawful for any person by agent or otherwise to sell intoxicating liquors to minors, unless upon the written order of their parents," this court decided that it was not necessary to prove that the person who sold liquor to a minor knew at the time of the sale that the purchaser was a minor. State v. Cain, 9 W.Va. 559. In that case the court expressly holds that the statute must be construed as remedial. And in respect to motive or intent it says: "As to whether the seller intended to violate the law or not at the time of selling to the minor is, under the authorities cited, immaterial, except in mitigation of the punishment." Id. 576. And in reference to offenses of a different character and the decisions of other states, HAYMOND, J., in delivering the opinion of the court, on page 578, says: "It is true that with us in felonies and most cases of misdemeanor under the common law, intent is regarded as being one of the chief elements necessary to constitute the crime or offense, but under this statute the commission of the act prohibited constitutes the offense. This is manifest, I think, from the legislation to which I have referred. I am aware that the highest courts of several of the states have differed in the construction of similar legislation. Some of them have taken the view I have presented, and others a different view. But I apprehend, if the courts of the states adopting a different view from that I have taken had considered their legislation such as required them to construe the legislation as remedial and not penal, they would have arrived at the...