State v. Ito

• Decision Date: 26 May 1911
• Docket Number: 17,104 - (15)
• Citation: 131 N.W. 469,114 Minn. 426
• Parties: STATE v. BEN ITO
• Court: Minnesota Supreme Court

131 N.W. 469

114 Minn. 426

STATE v. BEN ITO

Nos. 17,104 - (15)

Supreme Court of Minnesota

May 26, 1911

Defendant was convicted in the municipal court of Minneapolis of the offense of selling intoxicating liquor without a license. From the judgment of conviction, Waite, J defendant appealed. Affirmed.

SYLLABUS

Intoxicating liquor -- sale by waiter.

One who acts in good faith as the agent or messenger only of a purchaser of intoxicating liquors is not himself guilty of an unlawful sale thereof; but the law will not tolerate any device or pretense to conceal an unlawful sale. Evidence considered, and held sufficient to sustain the defendant's conviction of selling intoxicating liquors without a license.

George W. Strong and Walter S. Chase, for appellant.

Daniel Fish and W. G. Compton, for the State.

OPINION

START, C.J.

The defendant was convicted in the municipal court of the city of Minneapolis of a violation of a city ordinance which provided that: "No person shall sell, vend, deal in, or dispose of any spirituous, vinous, fermented, or malt liquors, in or at any building or other place within the limits of the city of Minneapolis, without first having obtained a license therefor." He appealed from the judgment, and here urges that the evidence is not sufficient to sustain the finding by the trial judge that he was guilty. The record, so far as here material, is this:

"William F. Mealey and Grant Baker, being each duly sworn, each deposed as follows: 'We are detectives of the Minneapolis police force. On the afternoon of November 15, 1910, we went to the Mandarin Cafe, at Nos. 25 and 27 South Fifth street, in the city of Minneapolis, dressed in plain clothes. This is a Chinese restaurant and chop suey house. We went into a private booth and ordered a meal, which was served to us by the defendant, who is a waiter in that place. After we had paid for our meal, Mr. Mealey said to him: "Bring us a bottle of beer." The waiter said: "I will have to go out for it." Mr. Mealey said: "All right." The defendant hesitated, and Mr. Mealey laid a silver dollar on the table, which the defendant took and went out. He was gone about four or five minutes. He returned with a quart bottle of Miller's High Life beer and seventy cents in change. Mr. Mealey then handed the defendant ten cents.' The defendant admitted that the liquor sold was beer, and was intoxicating liquor. The defendant offered no evidence."

If the defendant was licensed to sell intoxicating liquors, it was a matter of defense to be established by him; hence there can be no presumption that either he or the proprietor of the place where the transaction took place was licensed. It follows, then, that if the transaction as detailed by the witnesses was, unexplained, prima facie evidence of a sale of liquor, the conviction must be sustained. The credibility of the witnesses and the potency of any permissible inference to be drawn from their uncontradicted testimony was a question for the trial judge; but no inferences not justified by the evidence can be considered, for the defendant was not bound to prove his innocence, and show where and from whom he obtained the beer, although they were particularly, perhaps exclusively, within his own knowledge.

The contention of defendant's counsel is that the only fair inference that can be drawn from the evidence is that he was simply the agent of the plain clothes men to go out and buy a bottle of beer for them, and that he did so in good faith as such agent. If this be the case, he is not guilty. The rule in such cases is that one who acts in good faith as the agent or messenger only of a purchaser of intoxicating liquors is not himself guilty of an unlawful sale thereof; but the law will not tolerate any device or pretense to conceal an unlawful sale. Justice is not to be blinked by the mere form of an unlawful transaction. State v. Smith, 117 N.C. 809, 23 S.E. 449; Penner v. Commonwealth, 111 Ky. 604, 64 S.W. 435; State v. Morton, 42 Mo.App. 64.

These cases illustrate the rule we have stated. Thus, on the trial of the first case cited, a witness for the state testified: "'I sent for whiskey by the defendant. I told him to bring me some liquor. I forget how much money I gave him, but he brought me a quart of whiskey. He would be gone two or three hours. I never asked him where he got it. I paid him nothing for bringing it. This was in this county, within two years prior to this time.' The state rested, and defendant introduced no testimony." The defendant was convicted of selling intoxicating liquors without a license, and the judgment was affirmed on appeal; the court holding that the transaction was prima facie a sale.

There are some significant facts disclosed by the evidence in the case at bar. Defendant's response to the request for a bottle of beer was the natural one if the sale was to be made by resorting to the subterfuge of a colorable agency, but quite the contrary if it was intended to advise in good faith the proposed purchasers that no liquors could be sold on the premises. If it were an honest transaction, the response would naturally have been to the effect that he could not comply with the request. Again, the promptness with which the transaction was closed, in some four or five minutes, is quite suggestive as to the place from which the beer was obtained. We are of the opinion that the question of the defendant's guilt, upon the evidence, was one of fact for...