State v. Kittelle
| Decision Date | 06 April 1892 |
| Parties | STATE v. KITTELLE. |
| Court | North Carolina Supreme Court |
Appeal from criminal court, Mecklenburg county; MEARES, Judge.
Indictment against G. W. Kittelle and others for selling intoxicating liquors to an unmarried minor. From a judgment of conviction against him, defendant Kittelle appeals. Affirmed.
The other facts fully appear in the following statement by CLARK J.:
The defendant, Kittelle, was at the time of the alleged sale the proprietor of the Buford Hotel in Charlotte, and of the bar connected therewith. The defendant had two clerks in his barroom. The minor, Shuman, who was unmarried, testified that one of the clerks sold him beer, but he could not state which one it was, and that Kittelle was not present when he bought the beer. The defendant, Kittelle, testified that he had given his clerks "special instructions not to sell liquor to minors, or on Sunday, and otherwise to comply with the law;" that he closely scrutinized the conduct of the clerks, and, if liquor had been sold to Shuman, or to any other minor, it was done "without his knowledge, in violation of his instructions, and against his wishes." Kittelle was a licensed retailer. This is the substance of the evidence.
The defendant, Kittelle, requested the court to instruct the jury that if his clerks had sold liquor to the minor, Shuman without defendant's knowledge, in violation of his instructions, and against his wishes, they should acquit him. This prayer was refused, and the court charged the jury that if they found that either of the clerks had sold to Shuman they should convict the defendant, Kittelle. Defendant excepted. Verdict, judgment, and appeal.
Burwell & Walker, Jones & Tillett, and Osborne & Maxwell, for appellant.
The Attorney General, for the State.
CLARK J., (after stating the facts.)
The Code, §§ 1077, 1078, makes it a misdemeanor for any dealer in intoxicating liquor to sell directly or indirectly, or give away, such liquor to any unmarried person under 21 years of age, knowing such person to be under that age, and that such sale or giving away shall be prima facie evidence of such knowledge, and, further, that the father, mother, guardian or employer of a minor to whom intoxicating liquor shall be sold or given away may maintain an action for exemplary damages, and that in no case can the jury award the plaintiff a less sum than $25. The defendant contends that no one can be held criminally liable for an act which is done without his knowledge or consent. This is the strength of his contention. It is, in substance, that guilt cannot be attributed to him in this matter, because guilt consists in the intention, and that he had no intention to violate the law, because he neither knew of nor consented to the sale. There is, however, a well-defined distinction between those acts which are criminal only by reason of the intent with which they are done and those in which the intent to commit the forbidden act is itself the criminal intent. As to this very matter of the sale of spirituous liquor to minors, it has often been held that the lack of intention to violate the law did not exculpate if in fact the defendant did the act, or authorized it to be done, which constituted a breach of the law. State v. Wool, 86 N.C. 708; State v. McBrayer, 98 N.C. 619, 2 S.E. Rep. 755; State v. Scoggins, 107 N.C. 959, 12 S.E. Rep. 59; State v. Lawrence, 97 N.C. 492, 2 S.E. Rep.
367; Farrell v. State, 30 Amer. Rep. 614, and numerous cases cited in the notes thereto. A principal is prima facie liable for the acts of his agents done in the general course of business authorized by him, as where a barkeeper sells liquor, or a clerk sells a libel or prints one in a newspaper, and a vendor of spirituous liquors is indictable for the unlawful sale by his agent employed in his business, because all concerned are principals, In Carroll v. State, 63 Md. 551, 3 A. 29, it is held that, if in the conduct of the business of selling liquors a prohibited sale is made by the agent to a minor, the principal cannot shield himself from liability on the ground that his agent violated his general instructions, and did not inquire or was deceived by the purchaser as to his age; that, while deriving profit from the sale, the principal cannot delegate his duty to know that the purchaser is a lawful one to the determination of an agent, and be excused by the agent's negligence or error; that, intention not being an essential ingredient of the offense, the principal is held bound for the acts of his agent in violation of law while pursuing his ordinary business as such agent. Being engaged in business where it is lawful to sell to all persons except such as are by law excepted, it is his duty to know, when a sale is made, that it is to a properly situated person; and therefore it is his duty to trust nobody to do his work but some one whom he can safely trust to discharge his whole duty; and if he does not do so the law holds him answerable. The same is held in State v. Denoon, 31 W.Va. 122, 5 S.E. Rep. 315, and to the same effect are numerous other decisions. 11 Amer. & Eng. Enc. Law, 718. The same principle of the principal being liable criminally for the misconduct of his agents applies to many other offenses. In the leading case of Rex v. Gutch, Moody & M. 433, cited in 1 Tayl. Ev. 827, which was a prosecution for libel, Lord TENTERDEN said: "A person who derives profit from, and who furnishes the means for carrying on, the concern, and intrusts the business to one in whom he confides, may be said to have published himself, and ought to be answerable." In Redgate v. Haynes, 1 Q. B. Div. 89, the defendant was charged with suffering gaming to be carried on upon her premises. She had retired for the night, leaving the house in charge of the hall porter, who withdrew his chair to another part of the hotel, and did not see the gaming. It was held that the landlady was responsible. The same principle was maintained in Mullins v. Collins, L. R. 9 Q. B. 292, where the servant of a licensee supplied liquor to a constable on duty, and the court held the licensee answerable, though he had no knowledge of the act of his agent.
In the present case, had the defendant himself sold the liquor to the minor, he would be fixed prima facie with the knowledge that the purchaser was a minor. The contention of the defendant that such prima facie knowledge is rebutted by the fact that he was not personally present omits consideration of the fact that the knowledge of the agent is the knowledge of the principal. This is always true, though the intent of the agent (when material) is not necessarily the intent of the principal. The law requires the county commissioners to issue license to retail liquor only to persons whom they shall find properly qualified. This is construed in Muller v. Commissioners, 89 N.C. 171, to mean that among other things, the applicant must possess a good moral character. It would be a vain thing to require the commissioners to take the pains and trouble to ascertain if the applicant is properly qualified, and to reject him if he is not, if the licensee may, immediately upon opening his bar, set up as his clerk another applicant, who has perhaps just been rejected by the county commissioners, after due inquiry, as not properly qualified, and may claim, upon a violation of the law by such clerk, that he, the licensee, is not liable, because he had instructed his clerk when he had employed him not to violate the law, had often visited his barroom without seeing any sales made to minors, and no one had informed him that such sales were being made. If such were law, the safeguard intended to be obtained by placing the licensing power in the hands of the county commissioners, who shall issue license only to those whom they find "properly qualified," would be a delusion and a sham. If the only safeguard is an indictment of the person actually selling, that would exist against the principal, and there is no need of requiring a license of any one. The defendant's clerks had no license to retail liquor. Every sale by them to any one is indictable, and the defendant is indictable with them as coprincipal, (there being no accessories in misdemeanors,) for aiding and abetting them in their illegal traffic unless it is true that their sales are his sales. If it is valid to protect such sale by them under the authority of the license to him, then their sale is also his sale, to make him liable, if the terms of the license are not complied with. The licensee cannot put his clerks in his shoes, give them the benefit of the license issued to him upon the confidence reposed in his moral character, and not be held responsible for their violations of law in the scope of such employment. He cannot set up his bar, receive its profits, and abdicate his duties. The duty is imposed on him that the law shall not be violated by a sale to a minor. Here the sale was to a minor. The defendant put it in the power and authority of the clerk to sell. It was the defendant's own risk and peril that he was not present, and that he did not make the sale himself. That his agent did not obey his instructions, and negligently or purposely violated the law, does not exculpate the defendant. The law has been violated. It looks to the man it authorized to sell,--the licensee, this defendant. The sale by the clerk was in law a sale by the principal, and the violation of the law must be laid upon the defendant, who gave the clerk the means and the authority to sell, but did not take proper care in selecting his agent, or use means sufficient to prevent illegal sales by him. It will not do for the defendant to say...
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