State v. Gross

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, C. J.
• Citation: State v. Gross, 76 N. H. 304, 82 A. 533 (N.H. 1912)
• Decision Date: 06 February 1912
• Parties: STATE v. GROSS.

82 A. 533

76 N.H. 304

STATE

v. GROSS.

Supreme Court of New Hampshire. Belknap.

Feb. 6, 1912.

Bingham, J., dissenting.

Exceptions from Superior Court, Belknap County; Plummer, Judge.

Edmund C. Gross was convicted of an illegal sale of whisky, and he brings exceptions. Exceptions overruled.

Frank P. Tilton, Sol., for the State.

Owen & Veazey and Arthur A. Tyler, for defendant.

PARSONS, C. J. The Information charges the unlawful sale of two quarts of whisky to one Lyford, at Laconia, December 10, 1910. By agreement, the case was tried by the presiding judge, who found a verdict of guilty. The sale charged was prohibited by section 15, c. 312, Public Statutes: "If any person, not being an agent of a town for the purpose of selling spirit, shall sell * * * any spirituous liquor, in any quantity, he shall be fined," etc. The exception to the general verdict, which is not expressly stated to be based upon the special facts found, raises merely the question whether any of these findings are, as matter of law, so inconsistent with the general finding of guilty that that finding cannot stand. If, however, the case was intended to mean that the general verdict was based upon the special facts stated, the additional question would be presented whether the inference of guilt could reasonably be drawn from these facts. Kidd v. Trust Co., 75 N. H. 154, 155, 157, 71 Atl. 878; Kidd v. Traction Co., 74 N. H. 160, 176, 177, 66 Atl. 127; Dusseault v. Association, 74 N. H. 407, 68 Atl. 461; Jaques v. Chandler, 73 N. H. 376, 62 Atl. 713; Allen v. Association, 72 N. H. 525, 57 Atl. 922; Concord Coal Co. v. Ferrin, 71 N. H. 331, 51 Atl. 283, 93 Am. St. Rep. 496; Noyes v. Patrick, 58 N. H. 618.

Taking the view most favorable to the defendant, were there facts in evidence from which the inference that Gross sold Lyford spirituous liquor in Laconia, as alleged, could be drawn? The account of the transaction is that Lyford went to the defendant's office in Laconia for the purpose of buying whisky; that he told the person in charge (Otto A. Gross, who was the defendant's brother and agent) that he wanted to buy two quarts of whisky. He was asked what kind of whisky he wanted, and he replied, "Good whisky." Gross then said he would give him a certain brand. Lyford paid the price asked, and was told that he could get the whisky at the express office in Laconia the next day. These facts show an offer to buy, an acceptance of the offer, payment of the price, and a delivery to the purchaser in this state, and authorize, if they do not require, a verdict of guilty. No question has been raised because the transaction was entirely with the defendant's agent. The fact found, that, as a general thing, the business the defendant carried on at his office was transacted as in this case authorizes the inference that in this case the acts of the agent were authorized or ratified by him and were his acts. State v. Roberts, 55 N. H. 483; State v. Colby, 55 N. H. 72; State v. Bonney, 39 N. H. 206; State v. Foster, 23 N. H. 348, 353, 55 Am. Dec. 191.

The specific finding relied upon to upset the verdict is that Gross, the defendant, did not have any property in the whisky delivered to Lyford. But that fact is immaterial. "A servant or agent is liable, under the statute, for unlawfully selling spirituous liquor, the property of his principal." State v. McGuire, 64 N. H. 529, 15 Atl. 213. "Here is no question upon the contract of sale. It is the act of selling that causes the mischief against which the statute is aimed, and which the statute punishes as a crime. * * * Every sale by an agent, regarded as a contract, is the sale of the principal, and not of the agent; but to hold that an agent who sells liquors without license, by general instructions from his principal, is not liable under the statute as the seller would go far to defeat the object of the law. The criminal act might be committed, and the mischief accomplished by the agent in this state, while the principal resided in another jurisdiction, quite beyond the reach of punishment. The act of selling, we think, constitutes the statutory offense. It is made a crime to sell without license, and whoever actually makes the sale, though acting as agent for another, is guilty of the offense." Perley, C. J., in State v. Haines, 35 N. H. 207-209. "It appears to us that one who offers an article for sale, either upon the application of the purchaser or otherwise, and who, when the offer is accepted, delivers the article in pursuance of the offer, does 'sell' or make a sale, according to the ordinary sense and meaning of that term. It would seem strange and contradictory to maintain that one who sells goods on commission, or as the factor, agent, or salesman of another, does not sell them. The argument assumes that a sale must be construed to be a contract, by which the owner of property alienates it and transfers the title to another. But this is a very limited view of the subject. It is no less a sale, and even a valid sale, when made by the authority of the owner. * * * The statute prohibits all sales by unlicensed persons, as well sales de facto as sales by an owner." Shaw, C. J., in Commonwealth v. Hadley, 11 Mete. (Mass.) 66, 68.

It is further objected that the defendant did not have possession of the whisky, and did not deliver the whisky from the place of sale. Briefly, the course of business was as follows: The defendant was engaged in the liquor business, as a licensed dealer, when such business was permissible in Laconia and Ashland. After these places voted against licensing the sale of liquor, he entered into an arrangement to sell liquors for a firm in Boston, who gave him a writing, saying: "We take pleasure in introducing Mr. E. C. Gross, who is now selling goods for us in New Hampshire. Any order you may...