State v. Schull

• Decision Date: 22 April 1938
• Docket Number: 8153
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. ARTHUR SCHULL, Appellant.
• Court: South Dakota Supreme Court

66 S.D. 102

279 N.W. 241

STATE OF SOUTH DAKOTA, Respondent, v. ARTHUR SCHULL,

Appellant.

South Dakota Supreme Court

Appeal from Municipal Court, Watertown, SD

Hon. Lloyd L. Peterson, Judge

#8153—Affirmed

J.G. McFarland, Watertown, SD

Attorney for Appellant.

Clair Roddewig, Attorney General

Ellsworth Evans, Assistant Attorney General, Pierre, SD

Alan L. Austin, State’s Attorney, Watertown, SD

Attorneys for the State.

Opinion Filed Apr 22, 1938

WARREN, Judge.

Defendant was convicted under count 2 of the information which charged him with the violation of chapter 12 of the Special Session Laws for 1933, and acts amendatory thereof. The information alleged that the defendant, who was the holder of a class D license for the retail sale of nonintoxicating beer, “did wilfully and unlawfully sell Harry Schnackenberg, a person under the age of 18 years, a pitcher of non-intoxicating beer.” The defendant has appealed from the final judgment of conviction and the order denying his motion for a new trial.

We interpret the record as showing that the appellant licensee was not present at the time of the alleged sale of the pitcher of nonintoxicating beer to Schnackenberg and that he did not know about the transaction and had nothing to do with the sale and that the sale was by one Myra Fish, his employee, without the knowledge or consent of the appellant. Schnackenberg was not 18 years of age, even though he had the appearance of a fullgrown man. Appellant attempted to show that Schnackenberg was emancipated and that he had stated that he was over 18 years of age and that appellant honestly believed he was over 18 years of age. All of the evidence submitted by the appellant as to his belief of Schnackenberg’s age, that he had given positive instructions to all of his employees not to sell nonintoxicating beer to any person under the age of 18 years, and that he had signs on the outside and inside of his place of business that nonintoxicating beer would not be sold to minors, was consistently refused by the court. Appellant also requested instructions as to his good faith that he had ordered his employees not to sell to persons under the age of 18 years, that he was not present and had no knowledge of the transaction, which requested instructions were by the court refused. Appellant assigns as error the giving of instruction No. 7, which is as follows:

“Under the statute you are instructed that the question of intent to violate the law is not in issue nor does the question of his good faith or bad faith nor whether he believed Harry Schnackenberg to be eighteen years old or not, have anything to do with this case. The defendant, as a licensee, and under the law quoted to you, is bound to know whether Harry Schnackenberg was 18 years old or not, and whether he or his waitress acted in good faith or bad faith is not for you to determine. The only question for you to decide in this case is whether or not on the 6th day of October, A.D. 1937, the defendant, Arthur Schull, sold non-intoxicating beer to one Harry Schnackenberg, and whether or not he was at that time under the age of eighteen years as provided by statute.”

The above instruction was objected to on the ground that it did not state the law fully and correctly, and that it stated the law erroneously under the provisions of section 3583, subdivision 5, Revised Code of 1919.

Appellant, for the convenience of the court, has grouped his argument under two questions: First, in substance, can the defendant, during the course of the trial, introduce evidence of his lack of knowledge of the minor’s age and his good faith as part of his defense to the charge? Second, under the statute in question, is the licensee liable for the acts of his employees in the sale of nonintoxicating beer to minors and under what circumstances will he be exonerated, if any? We believe that this opinion may be materially shortened by treating the two together.

From the reading of section 16 of chapter 12, 1933 SD Special Session Laws, it will be observed that the Legislature placed the burden upon the licensee (and he alone under the act) not to sell or give any nonintoxicating beer or wine to any person under the age of 18 years. It would therefore seem reasonable that the Legislature intended to hold the licensee responsible for any offenses committed by virtue of and under the license issued by the state to him. Appellant contends that he should have been permitted to introduce evidence to show his lack of knowledge of Schnackenberg’s age and that he believed Schnackenberg was a person over 18 years of age, that intent is always an element of a crime, and that the court erred in not permitting appellant to introduce evidence of his good faith and lack of knowledge. This court has had occasion to deal with this question, and in the early case of State v. Sasse, 854, 55 AmStRep 834, dealt with the admission of the evidence and instructions to the jury, all of which is applicable to the assignments covering evidence and instructions in the case at bar. The court said:

“Plaintiff in error sold the liquor, charged by the statute with the knowledge that the purchaser was a minor; and proof that he acted in good faith, relying upon the sworn statement of such purchaser that he was over the age of 21 years, though mitigating in its character, was not competent as a defense upon the trial; and the court neither erred in giving its instructions to the jury or in refusing instructions offered by counsel for the defendant to the effect that in the absence of knowledge or intent, there could be no conviction.”

It will be observed that the statute does not require that the offense shall be knowingly committed. In State v. Dorman, 849, this court dealt with a similar question and quoted from Wharton on Criminal Law, and we quote:

“But we cannot agree with counsel in their contention that the provision applies to a case like the one before us. Mr. Wharton, in his work on Criminal Law (volume 1, § 88), lays down the general rule as follows: ‘When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense.’ ... It seems to us, however, that the law as laid down by Mr. Wharton is sustained by the weight of authority, and hence we followed it in State v. Sasse, supra. We cannot believe that the legislature, by the provision we have quoted, intended to make any radical change in the criminal law, or intended the provision to apply to any cases other than crimes mala in se. The California Criminal Code contains the same provision, and, while it has never been construed by the supreme court of that state, Mr. Deering, in his notes to the section, says, ‘where, however, a scienter is irrelevant, ignorance or mistake of fact is no excuse;’ citing a large number of authorities clearly indicating that, in the view of that learned annotator, that provision has no application to the case we are now considering. We conclude, therefore, that the subdivision we have quoted is only applicable to a class of cases where a scienter is material to constitute the offense, and does not apply to the case at bar. The learned court therefore committed no error in refusing to give the instruction requested by the defendant, or in charging the jury upon the subject of knowledge.” The following authorities...