State v. Probasco
| Decision Date | 11 December 1883 |
| Citation | 17 N.W. 607,62 Iowa 400 |
| Parties | STATE v. PROBASCO |
| Court | Iowa Supreme Court |
Appeal from Union District Court.
AN information was filed before a justice of the peace, charging defendant with permitting a minor to remain in a billiard saloon kept by defendant, in violation of the statute. Upon an appeal to the district court, defendant was convicted. He now appeals to this court.
AFFIRMED.
J. H Copenheifer and Stafford & Denning, for appellant.
Smith McPherson, Attorney-general, for the State.
I.
There was evidence, which was not contradicted, that one Clark, a minor, was frequently in a billiard saloon kept by defendant and spent nearly all of one day (June 20th, 1882,) therein and on that occasion played pool there. The defendant employed two or three bar-tenders, and a man to look after the billiard tables and the playing upon them. These men were present attending to their duties while the minor was in the saloon. There was no evidence that the employes of defendant knew that Clark was a minor. The defendant testified that he did not know Clark, and saw him in the saloon but once, and then, on account of his attire and appearance, defendant declares that he appeared to be thirty or forty years old.
II. The district court gave to the jury the following instructions, of which defendant complains:
The defendant asked the court to direct the jury, in substance, that, to authorize conviction, they must find from the evidence that the minor was "a frequenter of the saloon by the permission of defendant," and that defendant or his employes had knowledge that Clark was in the saloon. The request was refused.
Chapter 59, Acts of Fifteenth General Assembly, § 1, provides that "it shall be unlawful for any person who keeps a billiard hall, beer-saloon or nine or ten-pin alley, or the agent, clerk or servant of any such person, or any person having charge or control of any such hall, saloon, or alley, to permit any minor or minors to remain in such hall, saloon, or alley, or to take part in any of the games known as billiards, nine or ten-pins." Section two provides punishment for the violation of the act. See McClain's Statutes, p. 1019; Miller's Code, p. 968. Under this statute, it is unlawful for the keeper of a billiard saloon or his employes "to permit" a minor to remain in the saloon. We must enquire into the meaning and force of the words "to permit." It implies express assent or license to do an act, or a failure to prohibit or prevent it. If it is the duty of one to prevent or prohibit an act, and he fails to do so, or to use efforts to do so, he permits it. He permits the act which he could have prevented. This is the common meaning of the word, and it is used in that sense in the statute before us.
It is the duty of saloon-keepers not to permit but to prevent minors remaining in their saloons. The same duty is imposed upon their employes. If the keeper or his employe fails to take proper means to prevent minors remaining in their saloons, they permit it. Hence, if proper watchfulness is not exercised by either; if the keeper fails to enforce watchfulness on the part of his employes, and thereby a minor is permitted to remain in the saloon, both violate the statute.
It is obvious that, in the absence of watchfulness and proper effort to discharge the duty imposed by the statute, if a minor remain in the saloon without the knowledge of the keeper or employe, each is liable for the penalty provided by the statute. Neither can plead ignorance of the presence of the minor. It was their duty to know of his presence. Ignorance, especially...
To continue reading
Request your trial