State v. Fagan
| Decision Date | 05 November 1909 |
| Citation | 24 Del. 45,74 A. 692 |
| Court | Court of General Sessions of Delaware |
| Parties | STATE v. JOHN FAGAN |
Court of General Sessions, New Castle County, November Term, 1909.
INDICTMENT (No. 102 September Term, 1909,) FOR UNLAWFULLY SELLING INTOXICATING LIQUOR, to-wit, whiskey, in quantities less than one quart to be drunk off the premises the defendant having only a license to sell liquors in like quantities to be drunk on the premises.
The indictment was as follows: "New Castle County, ss. September Term, 1909.
By JOSIAH O. WOLCOTT, Depy. Atty. General."
Counsel for the defendant moved to quash the indictment because it failed to aver the sale without a license.
Verdict, guilty.
Josiah O. Wolcott, Deputy Attorney-General, for the State.
William F. Kurtz for the defendant.
We hold that the case of State vs. Polk, 22 Del. 456, 6 Pennewill 456, 69 A. 1006, governs this case; therefore the application to quash the indictment is refused.
At the trial, John L. Wright, Deputy Clerk of the Peace, was produced as a witness on behalf of the State and identified the license under which the defendant was selling liquor in quantities of less than one quart to be drunk on the premises, as having been issued to the defendant.
Mr. Kurtz, on cross examination, handed two papers which were licenses, to the witness, and proved by him that the same were issued to John Fagan by the Clerk of the Peace for New Castle County. The papers were marked for identification "A" and "B."
The State proved the sale of a half-pint of whiskey contained in a sealed bottle to one Edward H. Williams, by the bartender of the defendant at the latter's place of business at New Castle on the date laid in the indictment. The said whiskey was carried away from the premises in the original package without being opened and was identified by another witness as being the whiskey delivered to him by said Williams on the day of the alleged sale. The State then rested.
Kurtz, for the defendant, moved that the Court instruct the jury to find the defendant not guilty for the reason, that there was no evidence to show that the defendant knew of, or acquiesced in, or was benefited by, or connected with the alleged sale of whiskey as charged in the indictment.
The Deputy Attorney General replied, citing State vs. Burchinal, 2 Del. 528, 2 Harr. 528.
The Court has given very deliberate consideration to the motion that the jury be charged to bring in a verdict of not guilty. For reasons which may appear later, the motion is denied. You may proceed with the case.
George McGrory, the bartender of the defendant, was produced, as a witness on behalf of the defendant, and was asked by Mr. Kurtz the following question:
Q. With relation to your employment, what, if anything did Mr. Fagan tell you about the conduct of his saloon?
(Objected to by Mr. Wolcott, Deputy Attorney General as immaterial; citing Noecker vs. People of State of Illinois, 91 Ill. 494; State vs. McConnell, 90 Iowa 197, 57 N.W. 707; State vs. Stewart, 31 Me. 515; Carroll vs. State, 63 Md. 551, 3 A. 29; State vs. Caldwell, 1 Marvel 155; People vs. Longwell, 120 Mich. 311, 79 N.W. 484.)
Mr. Kurtz cited in support of the admissibility of the testimony offered: 1 Bishop's New Criminal Law, Sec. 219; State vs. Hayes, 67 Iowa 27, 24 N.W. 575; Commonwealth vs. Nichols, 51 Mass. 259.
The materiality of the question propounded and objected to as immaterial, depends upon the rule of law to be applied in this case, involving the criminal liability of a principal licensee for the unlawful act of his agent or servant.
The case at bar is distinguished from the case of the State vs. Peo, 17 Del. 525, 1 Penne. 525, 42 A. 622, and from other cases where the holder of a license is indicted for violating the provisions of Section 14, Chapter 418 of Volume 14, Laws of Delaware, such as the sale of liquor to minors, to insane persons, to habitual drunkards, or the sale of liquor upon the Lord's day or upon Election day, in that the defendant is here indicted not for selling liquor in violation of a license, but for selling liquor without a license within the sense and meaning of the law recently laid down in the case of the State vs. Mundy.
This case, like the case of the State vs. Mundy, 24 Del. 40, 1 Boyce 40 (74 A. 377), is distinguished from the ordinary case where the defendant is charged with the offense of selling liquor without a license, in that the defendant though charged with selling liquor without a license, was in fact a licensee having authority to sell liquor in a certain place, in a certain manner and in certain quantities. In other words, he was licensed to sell liquor in the place and manner prescribed in quantities less than one quart to be drunk on the premises, and he is indicted for the specific offense of selling liquor in quantities less than one quart to be drunk off the premises, or, in other words, for selling liquor without a license.
It appears that in the conduct of his business under the license granted him to sell liquor to be drunk on the premises, the defendant employed a bartender who, it is alleged, while acting in such capacity, sold liquor to be drunk off the premises.
By the question asked the witness, it is apparent that the defendant seeks to show that the unlawful act of the bartender was without authority or in violation of the instructions of the defendant, and the State objects to the question on the ground that the answer would not relieve the defendant from criminal liability for his bartender's unlawful act, claiming that the principal is liable for the act of his agent or servant, whether he expressly or impliedly authorized it or not.
After a full and careful examination of all the authorities cited by the Attorney-General, we find but one that applies to the criminal liability of a master for his servant's act of selling liquor without a license, the remaining cases being in support of the rule laid down in the case of the State vs. Peo, with respect to the violation of a license granted, which has been distinguished from this case. By an examination of the authorities cited by the counsel for the defendant, we find several lines of cases attaching to a defendant differing grades of liability for his servant's acts, according as statutes regulating the sale of liquor are strict or liberal.
Applying the principles of law, as we find them, to the language and the spirit of our statute, we hold that as the defendant was the recipient of a license from the State, giving him the authority and the privilege to sell liquor in a certain manner, and as he saw proper to conduct his business under that license by the agency of a bartender, the defendant as principal must be held prima facie liable for the sale of liquor made by his agent in a manner different from that authorized by his license and beyond and without authority of a license.
We further hold, that as the defendant is not charged with a violation of his license in the sense of the rule laid down in the case of State vs. Peo, he may avoid this prima facie liability by producing evidence in rebuttal that the act of his bartender was without his authority or knowledge and against his instructions.
When a principal is charged with selling liquor by an agent or servant, not in violation of a license, but without a license, and a conviction is sought, it must appear expressly, or by implication such as that indicated in this case, that he gave authority to or had knowledge of his agent's acts, just as in any other case where criminal responsibility is sought to be attached to a principal for the wrong-doing of his agent.
State vs. Peo, 17 Del. 525, 1 Penne. 525, 42 A. 622; Bishop's New Criminal Law, Sec. 219; Commonwealth vs. Nichols, 51 Mass. 259; In re Berger, 84 Neb. 128, 120 N.W. 960.
The objection to the question is overruled.
Mr Kurtz, counsel for defendant, offered in evidence the license which had been identified by the Deputy Clerk of the Peace, and marked "A for identification." This was objected to by the Deputy Attorney-General as immaterial, and he argued that upon the face of the license there were two dates, one of January 30, 1909, being the teste date, and the other a stamp date of July 24, 1909; that if it should appear that the license was not issued until July 24, 1909, it would not be admissible and the State is entitled...
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State v. Oleksy
...his contention with any authorities that said provision was unconstitutional or that the court considered that question. In State v. Fagan, 1 Boyce 45, a motion was made to the indictment because it failed to aver the sale without a license. The court merely stated that it was of opinion th......