State v. Gilmore

• Decision Date: 24 January 1908
• Citation: 80 Vt. 514,68 A. 658
• Court: Vermont Supreme Court
• Parties: STATE v. GILMORE.

68 A. 658

80 Vt. 514

STATE

v. GILMORE.

Supreme Court of Vermont. Franklin.

Jan. 24, 1908.

Exceptions from Franklin County Court; Seneca Haselton, Judge.

D. Gilmore was convicted of illegally selling intoxicating liquor, and excepts. Exceptions overruled.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Frederick S. Tupper, State's Atty. Elmer Johnson and Lee S. Tillotson, for respondent.

TYLER, J. Information for selling intoxicating liquor without authority. Section 20, Act No. 115, p. 134, passed in 1904, reads: "No person shall furnish, sell, expose or keep for sale any intoxicating liquor except as authorized by this act. * * *" Condition 5 of section 23 is: "That no liquor shall be sold or furnished to a minor for his own use or the use of any person, nor to an habitual drunkard. * * *" The case comes to this court upon an agreed statement of facts, signed by the state's attorney and the respondent. The material facts are that the respondent on December 24, 1906, was the holder of a first-class license to sell intoxicating liquors under said act; that on that day a minor purchased intoxicating liquor of one of his employés, paid him for it, and drank it in his presence on the premises; that the liquor sold was taken from the respondent's stock of liquors kept by him for sale under his license; that the respondent was not upon the premises at the time of the sale, had no knowledge of it, did not authorize it nor approve of it, but, on the contrary, had previously instructed all his employés not to sell to minors or drunkards, or in any manner violate the conditions of his license.

The question is whether the act complained of was, in law, the respondent's act, when committed by his servant. The state contends that the respondent is answerable for the act in accordance with the maxim, "Qui facit per alium facit per se." The respondent claims that, as the sale was made without his knowledge and contrary to his instructions, the employé alone is liable. Intent is not an essential ingredient of the offense charged. State v. Tomassi, 67 Vt. 312, 31 Atl. 780; State v. Perkins, 42 Vt. 399; State v. Ackerly, 79 Vt. 69, 64 Atl. 450. In Commonwealth v. Savery, 145 Mass. 212, 13 N. E. 611, the respondent sold an intoxicating liquid by mistake. Held, that his belief that it was not intoxicating was no defense. The rule is, where a statute commands that an act be done or omitted, which, in the absence of such statute might be done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation.

In some jurisdictions licensees have been held criminally liable upon the ground that, intention not being an essential element of the offense, the principal is bound by the acts of his agent in violation of law while pursuing his ordinary business as such agent. Other courts and law writers hold that to render the principal liable his authority to his agent to commit the act must be shown. In 2 Bish. Stat. Crimes, § 1049, the rule is stated thus: "A sale by one acting as clerk or other agent of the defendant must appear also to have been authorized by him. If he was present the authority will ordinarily be inferred; if absent, it may be presumed from the circumstances and other proofs. The mere fact that the person making the sale was the defendant's clerk in a lawful business is not enough, for an authorization to do what is lawful is not an authority to commit a crime. Within this principle, if the clerk or bartender of a licensed retailer, whom the law forbids to sell to minors and drunkards, makes such sale in his absence, he cannot be punished without some evidence indicating his consent to what is thus lawful." In support of the rule the writer cites cases from Maine, New Hampshire, Indiana, Texas, Alabama, and Minnesota, but admits that in some of the states the contrary rule prevails. It was held in Com. v. Nichols, 10 Metc. (Mass.) 259, 43 Am. Dec. 432, that the defendant was not liable criminally as a seller when the sale proved was by a servant, without his knowledge, in opposition to his will, and which was in no way participated in, approved, or countenanced by him. This doctrine is reaffirmed in Com. v. Wachendorf, Mass. 270, 4 N. E. 817; Com. v. Briant, Mass. 463, 8 N. E. 338, 56 Am. Rep. 707; Com. v. Hayes, 145 Mass. 289, 14 N. E. 151; Com. v. Rooks, 150 Mass. 59, 22 N. E. 436; Com. v. Stevens, 153 Mass. 421, 26 N. E. 992, 11 L. R. A. 357, 25 Am. St Rep. 647. In Missouri the statute forbade any dramshop keeper, druggist, or merchant selling to an habitual drunkard after notice, and it was held in State v. Shortell, 93 Mo. 123, 5 S. W. 691, that it did not warrant the conviction of a person for the act of his servant done in violation of his express directions. And in Anderson v. State, 22 Ohio St. 305, where the statute contained the words, "person or persons, by agent or otherwise," it was held that a sale to a minor by a clerk, without the principal's authority, and against his express directions, did not make the principal liable. Decisions of courts of last resort in other states might be cited to illustrate the rule laid down by Bishop, but the foregoing are sufficient for the purpose.

We will briefly refer to some of the cases that hold a different doctrine. In State v. Kittelle, 110 N. C. 560, 15 S. E. 103, 15 L. R. A. 694, 28 Am. St. Rep. 698, the court said that the licensee is bound to know that sales are made only to proper persons, and to this end he must employ persons whom he can trust; that he puts the employé in his place and gives him authority to make sales of liquor for his benefit, and should be responsible for the employé's acts. In McCutcheon v. People, 69 Ill. 606, the court said it was immaterial whether the sale was made by the respondent or an agent, and that, if made by an agent, the presumption is conclusive that he acted within the scope of his authority. "When the agent * * * is set to do the very thing which, and which only, the principal's business contemplates, namely, the dispensing of liquors to purchasers, the principal must be chargeable with the agent's violation of legal restrictions on that business. His gains are increased, and he must bear the consequences. The fact that he has given orders not to sell to minors only shows a bona fide intent to obey the law, which all the authorities say is immaterial in determining guilt" The court further reasoned that, as intent was not an ingredient in the offense, it logically followed that it was immaterial whether such orders were given or not; that he who does by another that which he cannot lawfully do in person must be responsible for the agent's act; that in fact it is his act; that by setting up another to do his work while he occupies himself elsewhere he cannot take the benefit of the agent's sales and escape the consequences of the agent's conduct. Noecker v. People, 91 Ill. 494, is to the...