State v. McCance

• Court: Missouri Supreme Court
• Writing for the Court: Gantt, P. J.
• Citation: State v. McCance, 110 Mo. 398, 19 S.W. 648 (Mo. 1892)
• Decision Date: 31 May 1892
• Parties: The State v. McCance, Appellant

19 S.W. 648

110 Mo. 398

The State v. McCance, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Certified from Kansas City Court of Appeals.

Reversed and remanded.

John S Blackwell for appellant.

(1) The indictment is insufficient in law. Under it the defendant did not and could not know what to meet. He had the constitution al right to know this which right was denied him. Constitution, art. 2, sec. 22; State v. Crooker, 95 Mo. 389; State v. Reakey, 62 Mo. 40; State v Hayward, 83 Mo. 299; United States v. Cruikshank, 92 U.S. 558; United States v. Hess, 124 U.S. 483. (2) It was error to receive evidence of a sale to the minor by the bar-keeper of defendant. It was a variance from the allegations of the indictment. The allegations in the pleading and the proofs must correspond. 2 Greenleaf's Evidence [Redf. Ed.] secs. 50, 51; Roscoe's Evidence [6 Am. Ed.] secs. 75, 86; Seibert v. Allen, 61 Mo. 482; Waldstein v. State, 14 S.W. 394; Draper v. Fitzgerald, 30 Mo.App. 518; State v. Reiley, 75 Mo. 521. (3) The court committed error resulting in defendant's conviction in refusing to allow the defendant and his bar-keepers, James Small and Charles Rogers, to testify as to the orders and instructions given by the defendant to said Small and Rogers, forbidding them from selling or giving intoxicating liquors of any kind, character or quantity, to any minor or minors, without the written permission of the parent, master or guardian of such minor being first had and obtained, authorizing such sale or gift. State v. Reiley, 75 Mo. 521; Barnes v. State, 19 Conn. 398; State v. Baker, 71 Mo. 475; State v. Shortell, 93 Mo. 123; Bishop's Statutory Crimes, sec. 99, and note; State v. McGrath, 73 Mo. 181; Thompson v. State, 45 Ind. 495.

William Aull, Prosecuting Attorney, for the State.

(1) The indictment is sufficient. R. S. 1889, sec. 4589; O'Brien v. State, 2 S.W. 337; Com. v. Park, 1 Gray (Mass.) 553; Com. v. Holmes, 119 Mass. 195; State v. Quinn, 40 Mo.App. 627. (2) Evidence of a sale by the bar-tender was properly admitted. R. S. 1889, sec. 4589; O'Brien v. State, supra; Com. v. Park, supra; Com. v. Holmes, supra; State v. Bruder, 35 Mo.App. 479; State v. Hartfield, 24 Wis. 60; McCutcheon v. People, 69 Ill. 602; Seigel v. People, 106 Ill. 96; Redmond v. State, 36 Ark. 58; State v. Coenan, 48 Iowa 569. (3) The sale by the bartender was a sale by defendant regardless of his instructions to his bar-tender. R. S. 1889, sec. 4589; State v. McGinnis, 38 Mo.App. 15; Greene Co. v. Wilhite, 29 Mo.App. 459; Draper v. Fitzgerald, 30 Mo.App. 518; Teasdale v. State, 3 S. Rep. (Miss.) 245; State v. Denoon, 5 S.E. (W. Va.) 315; Mayler v. State, 47 Ark. 109; Snider v. State, 7 S.E. (Ga.) 631; Boatright v. State, 77 Ga. 717; Noecker v. People, 91 Ill. 494. (4) "Any sale made to any minor by any clerk, agent or other person acting for any dramshop keeper shall be deemed and taken to be, for all the purposes of this article, as the act of such dramshop keeper." R. S., sec. 4589. This statute is constitutional. Defendant had the right to sell liquor, and such right only as was given by the statute authorizing his license. He accepted his license under this statute, which imposed this as one of the penalties for its violation. Austin v. State, 10 Mo. 591; Bartmeyer v. Iowa, 18 Wall. 129; Kidd v. Pearson, 9 S.Ct. 6; Wingler v. Kansas, 123 U.S. 623; St. Louis v. Fitz, 53 Mo. 582; State ex rel. v. Hudson, 78 Mo. 302; State v. Fancher, 71 Mo. 460; Householder v. Kansas City, 83 Mo. 488; State ex rel. v. Laughlin, 75 Mo. 147; State v. Addington, 77 Mo. 110; Kelly v. Meeks, 87 Mo. 396; State v. Fisher, 52 Mo. 177.

OPINION

Gantt, P. J.

The defendant was indicted by the grand jury of LaFayette county, at the March term, 1891, for having on December 25, 1890, in said county, as a dramshop keeper, unlawfully sold intoxicating liquor to one Dave Blewitt, a minor, without the written permission of his parent, mother or guardian. Defendant was convicted and fined $ 50. From this conviction he appealed to the Kansas City court of appeals. Defendant having challenged the indictment in that court, on the ground that it did not inform defendant of the nature and cause of the accusation against him, it was ordered transferred to this court.

I. It is conceded by defendant that, if the evidence had shown that the defendant himself had made the sale of liquor for which he is indicted, it would be good, but he contends that, as the proof showed a sale by his agent, it is not sufficient. The indictment is sufficient, uniformly so held in this and most of the other states. State v. Baker, 71 Mo. 475; State v. McGrath, 73 Mo. 181; State v. Heckler, 81 Mo. 417; Barnes v. State, 19 Conn. 398; O'Brien v. State, 2 S.W. 339; Waller v. State, 38 Ark. 656; Noecker v. People, 91 Ill. 494; Commonwealth v. Fredericks, 119 Mass. 199.

II. After the state had shown the sale was made by the defendant's bar-keepers, the defendant testified he did not sell the intoxicating liquor to the minor, and offered to prove by himself and James Small and Charles Rogers, his bar-keepers, that he gave strict and positive orders to them not to sell or give any intoxicating liquors of any kind or character to any minor or minors without a written permission or written consent of the parent, guardian or master of such minor. Upon the objection of the prosecuting attorney the court held this evidence incompetent, and excluded it. Defendant saved his exceptions. This necessarily involves a construction of sections 4588 and 4589, Revised Statutes, 1889.

This point has not been decided in this court. Prior to 1885, the remedy for a violation of this statute as to sales to minors was by civil action only. State v. Amor, 77 Mo. 568. In that year the offense was made a misdemeanor and punishable by fine.

The liability of the dramshop keeper for the sale of liquor to minors by his agent was clearly established by the St. Louis court of appeals in civil actions, and it was held that neither ignorance of the minority of the vendee, nor violation of the dramshop keeper's directions, was available as a defense under the statute. In other words the statute furnished a conclusive rule of evidence. Greene Co. to use v. Wilhite, 29 Mo.App. 459; Draper v. Fitzgerald, 30 Mo.App. 518.

These rulings were expressly confined to the civil liability, and the intimations were very clear, that in the opinion of that court the rule of evidence would be different in a criminal prosecution under this statute. But in State v. McGinnis, 38 Mo.App. 15, the Kansas City court of appeals held, under said sections, that even in a criminal prosecution for sale of liquor to a minor it was no defense for the proprietor of a dramshop, that his bar-keeper sold the liquor to a minor contrary to the orders of the proprietor. This construction of the statute, defendant claims, is unreasonable, and denies him the right of trial by jury.

The right of the state to regulate the sale of intoxicating liquors, and the wisdom of making stringent regulations for preventing sales of intoxicants to minors, is not denied by the defendant. As a general rule of law the principal cannot be held criminally liable for the acts of his agent committed without his knowledge or consent. But there are statutes which are in the nature of police regulations which impose criminal penalties, irrespective of any intent to violate them. A number of these are collated by Chief Justice Cooley in People v. Roby, 52 Mich. 577, 18 N.W. 365.

The decisions of the various states are so conflicting on the case at bar they cannot be reconciled. The opinion in State v. McGinnis, supra, is amply supported by decisions of the supreme courts of Illinois, Arkansas, Mississippi and Georgia, and perhaps other states. People v. Noecker, supra; McCutcheon v. People, 69 Ill. 601; Robinson & Warren v. State, 38 Ark. 641; Whitton & Ford v. State, 37 Miss. 379; O'Brien v. State, supra; Edgar v. State, 45 Ark. 356; Loeb v. State, 75 Ga. 258. In other jurisdictions the rule holds the dramshop keeper prima facie liable only for the acts of his agent, and he is permitted to offer evidence that he forbade the sale, and his good faith in so doing is a question for the jury. Commonwealth v. Nichols, 10 Metc. 259; Thompson v. State, 45 Ind. 495; Commonwealth v. Putnam, 4 Gray 16; Commonweath v. Stevens, 153 Mass. 421, 26 N.E. 992; Commonwealth v. Wachendorf, 141 Mass. 270, 4 N.E. 817 ; Anderson v. State, 22 Ohio St. 305; State v. Smith, 10 R.I. 258; Barnes v. State, supra; State v. Wentworth, 65 Me. 234; State v. Hayes, 67 Iowa 27, 24 N.W. 575; State v. Gaiocchio, 9 Tex. Ct. App. 387; State v. Wray, 72 N.C. 253; State v. Bacon, 40 Vt. 456. So in this state the rule has been settled in prosecutions for the violation of the dramshop act and druggist law, without reference, however, to this section, that a sale by a clerk or agent was only prima facie evidence of guilt of the master. State v. Baker, 71 Mo. 475; State v. Heckler, 81 Mo. 417; State v. Shortell, 93 Mo. 123, 5 S.W. 691.

It will be observed that the statute attaches the same significance to the act of the agent in selling to the "habitual drunkard" as to a minor, and this court, in State v. Shortell, supra, defended the particular statute in that case, against the charge of unconstitutionality on this identical ground, that it did not authorize the conviction of the dramshop keeper for the acts of his agent, done in violation of his directions. The court does not quote this section or comment on it, but the exact point was before the court, and it construed the law against the view held in State v. McGinnis.

Does section 4589 establish a conclusive, or merely a prima facie rule of evidence? It seems to us, in...