State v. Erlandson

• Decision Date: 30 October 1952
• Docket Number: No. 9214,9214
• Citation: 126 Mont. 316,249 P.2d 794
• Parties: STATE v. ERLANDSON.
• Court: Montana Supreme Court

Page 794

249 P.2d 794

126 Mont. 316

STATE v. ERLANDSON.

No. 9214.

Supreme Court of Montana.

Oct. 30. 1952.

Jess L. Angstman, Havre, for appellant.

Arnold H. Olsen, Atty. Gen., John L. McKeon, Asst. Atty. Gen., William F. Crowley, Asst. Atty. Gen., Edward J. Ober, Jr., Co. Atty., Havre, for respondent.

ADAIR, Chief Justice.

The defendant Eva Erlandson owns the Fresno Tavern in Hill county, Montana, located about fifteen miles west of Havre and without the corporate limit of any city or town, which tavern the defendant operated pursuant to the authority conferred upon her by retail beer license No. 1550 and retail liquor license No. 1490, issued to her by the Montana state liquor control board.

At about 1:30 o'clock a. m. on Sunday, February 10, 1952, the probation officer of Hill county, accompanied by a deputy sheriff of said county found three 16 year old girls and two 18 year old boys, all students of the Havre high school, congregated at the bar in the Fresno Tavern, where they were engaged in drinking either beer or gin that had been sold and served to them by one Gladys Maalis, a bar maid, who was then, behind the bar in the tavern, selling and serving drinks.

It is the law of Montana that: 'Any person whomsoever whether a licensee or not, who shall without the corporate limit of any city or town, permit minors to congregate and sell or give away to said minors beer or other liquors shall be deemed guilty of maintaining a nuisance' and 'be guilty of a misdemeanor and upon conviction thereof shall be fined not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00) and be imprisoned not less than thirty (30) days nor more than six (6) months.' R.C.M.1947, Sec. 4-345. Emphasis supplied.

The aforesaid bar maid sold and served to one of the boys, a mixed gin drink commonly known as a 'Sloe Gin Collins' of which drink the lad permitted two of the 16 year old girls to sip.

To the other 18 year boy the bar maid sold and served five bottles of beer, being one apiece for the three girls and two bottles for himself.

It is the law of this state that, 'It shall be unlawful for any * * * relailer, his or her employee or employees to sell, deliver or give away, or cause or permit to be sold, delivered or given away, any beer to: 1. Any person under the age of twenty-one (21) years;' and that upon conviction of violating the provisions of such statute the offending retailer shall 'be subject to the penalties provided for in Section 4-305 of the Montana beer act, and in addition thereto the license of any such * * * retailer shall, in the discretion of the board, be immediately revoked, or said license may be suspended for a period of not more than three (3) months.' Section 7 of Chapter 166, Montana Session Laws of 1951.

Upon entering the Fresno Tavern the officers confiscated the beer that was on the bar in front of the minors there congregated and sent them out of the establishment and on the way to their respective homes.

The Information. By information filed in the district court of Hill county, Montana, on Februarly 19, 1952, it was charged that on or about the 10th day of February 1952, in said county and state, the defendant Eva Erlandson, did 'unlawfully at the Fresno Tavern, by and through Gladys Maalis, the bar maid therein, sell and deliver and cause and permit to be sold and delivered to one, Thomas Lumpkin, a person under the age of twenty-one (21) years, a bottle of beer, the said Eva Erlandson being then and there the owner of said tavern and duly licensed by the State of Montana to sell beer and liquor at retail, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State of Montana.'

The Judgment. Upon her plea of not guilty the defendant was tried by a jury, convicted of the misdemeanor charged and sentenced to pay a fine of $250. From the judgment entered against her in conformity to the jury's verdict the defendant has appealed.

Defendant's only specification of error is that there is no substantial evidence to support the judgment of conviction.

At the trial seven witnesses testified for the state, they being the five juveniles who had congregated in the tavern and the two peace officers who found them there. The defendant alone testified for the defense.

The Evidence. At the trial the probation officer testified: 'I got out of the car and went over to the tavern and looked in the window * * * and I saw a group of high school students in there. I noticed that they were drinking * * * before we got inside I noticed * * * that one of the boys gave the drink to the girls, and I noticed that at least two of them took a sip of the drink just to taste it, I imagine, but when we got inside there was a bottle of beer sitting in front of the Lumpkin boy.'

The deputy sheriff, who accompanied the probation officers, testified: 'I just glanced in the window and saw some youngsters in there and then we walked in. There were three girls and two boys at the bar. One of the boys had a bottle of beer before him, and there was a small glass with some beer in it in front of the other boy.'

One eighteen year old testified: That he was a junior in high school; that at about 7:30 o'clock on the evening of February 9, 1952, he and Thomas Lumpkin were at the Fresno bar, where he first saw the bar maid Gladys; that on this occasion the witness had a drink for which he paid and that Thomas Lumpkin also had a drink or drinks for which Lumpkin paid; that thereafter the witness and Lumpkin proceeded to Havre where, shortly after midnight, they picked up the three 16 year old girls who accompanied them in an automobile to the Fresno Tavern where Gladys, who was still behind the bar, sold and served the witness a 'Sloe Gin Collins;' and that such bar maid also served beer to Lumpkin and to each of the three teen aged girls and that Lumpkin paid for the beer so sold and delivered.

At the trial Thomas Lumpkin testified: That he was 18 years of age and a member of the senior class of the Havre high school; that he had been in the Fresno Tavern at different times during the period covering about a month or so prior to February 10, 1952, on which occasions he had seen the bar maid Gladys in the tavern; that upon entering the tavern on the morning of February 10th, the witness first ordered and was served a bottle of beer by Gladys who was then behind the bar; that thereafter he purchased a second bottle of beer for himself and that while he was drinking beer from a glass, with his second bottle on the bar in front of him, the two officers entered the tavern and seized the beer in the bottle as well as that remaining in the glass from which the witness had been drinking.

Defendant's direct examination at her trial by her own counsel began as follows:

'Q. State your name please? A. Eva Erlandson.

'Q. Where do you reside? A. At the Fresno Tavern and on the farm.

'Q. Where is your farm with respect to the Fresno Tavern? A. It's thirteen miles southwest of Fresno.

'Q. Do you own the Fresno Tavern? A. Yes.

'Q. And you also own your farm? A. Yes.'

Thus by her own testimony was defendant shown to have been an occupant of the Fresno Tavern wherein the offense charged was committed and wherein Gladys Maalis, the bar maid was, by defendant, suffered to be and remain.

It is the law of Montana that 'Upon proof of the fact that an offense against this act has been committed by any person in the employ of the occupant of any house, shop, room, or other premises in which the offense is committed, or by any person who is suffered by the occupant, to be or remain in or upon such house, shop, room, or premises or to act in any way for the occupant, the occupant shall prima facie be deemed to be a party to the offense so committed and shall be liable to the penalties prescribed of the offense as a principal offender, notwithstanding the fact that the offense was committed by a person who is not proved to have committed it under or by the direction of the occupant; but nothing in this section shall relieve the person actually committing the offense from liability therefor.' R.C.M.1947, sec. 4-207. Emphasis supplied. 48 C.J.S., Intoxicating Liquors, Sec. 271, p. 388, note 35.

The State Liquor Control Act and the Montana Beer Act are companion measures originally enacted as Chapters 105 and 106 of the Montana Session Laws of 1933. The acts are in pari materia,--they must be construed together and, with the amendments thereto, they comprise but one homogeneous consistent body of law. Fletcher v. Paige, 124 Mont. 114, 116, 117, 220 P.2d 484, 19 A.L.R.2d 1108. The acts are police regulations enacted pursuant to the police power of the state. Stephens v. City of Great Falls, 119 Mont. 368, 372, 175 P.2d 408. The acts and deeds therein condemned and prohibited are mala prohibita as distinguished from acts mala in se. As to acts mala in se the intent governs but as to those mala prohibita the only inquiry is: Has the law been violated? State v. Smith, 57 Mont. 563, 577, 578, 190 P. 107.

The defendant's principal defense was an alibi, she having testified that, at the time charged in the information, she was absent from the tavern and then at her ranch home thirteen miles distant.

While defendant testified that she gave her manager Pat Griffon 'certain instructions about selling liquor to minors or violating the law' yet she wholly failed to inform the court or jury what those instructions were...