State v. Schultz, 47918

• Decision Date: 13 November 1951
• Docket Number: No. 47918,47918
• Parties: STATE v. SCHULTZ.
• Court: Iowa Supreme Court

Page 9

50 N.W.2d 9

242 Iowa 1328

STATE v. SCHULTZ.

No. 47918.

Supreme Court of Iowa.

Nov. 13, 1951.

Hall & Ewalt, of Indianola, for appellant.

Robert L. Larson, Atty. Gen. and M. C. Herrick, County Atty. of Warren County, Indianola, for appellee.

THOMPSON, Justice.

The indictment herein charged the defendant with violation of section 124.20 of the Code of 1950, I.C.A. After the jury had been selected and sworn, the county attorney was permitted, over defendant's objection, to amend by adding the words 'either personally or by agent or employee.' The original indictment charged the defendant with the crime of 'offering or making beer available to a minor,' in that the defendant 'did on October 20, 1950, offer or make beer available to Marion Hardesty, a minor of 16 years of age.' The words of the amendment were inserted immediately after the date, so that this portion of the charge, as amended, read: * * * 'did no October 20, 1950, either personally or by agent or employee' offer or make beer available * * *. Defendant was found guilty by jury verdict, and judgment was duly entered thereon.

There is little dispute in the facts. Defendant and his wife had a Class B beer permit, by virtue of which they operated a tavern in the town of Martensdale, in Warren county. Defendant was employed in Des Moines, so that the operation of the tavern fell almost altogether to his wife, with the assistance of one Rhoads. On the evening of October 20, 1950, when the commission of the alleged crime is charged, the evidence is without dispute that defendant was in Des Moines, and did not return until some hours after the claimed sale of the beer to the minor. Nor is there any evidence whatever that he had any knowledge of the transaction, or that it was made under his direction or with his consent.

The record is likewise devoid of any showing as to who made the sale. Marion Hardesty, 16 years of age on October 20, 1950, had started from Winterset for Des Moines, with four other boys, all minors, about 5:30 to 6:30 p. m. on the date named. They were traveling in an automobile owned by one of the boys. On the way they took up a collection for the purpose of purchasing beer, and stopped before the defendant's tavern in Martensdale. Here Hardesty, armed with the proceeds of the collection, entered the place and bought eighteen bottles of beer. He did not know from whom he made the purchase. He testified: 'I did not look very closely at the man who sold me this beer. If I saw him again I would not know him.'

The other boys remained in the car, and did not see the seller.

The material part of section 124.20 is herewith set out: 'It shall be unlawful for any person to sell, give or make available to any minor or to permit any minor to purchase or consume any beer on the premises of a class 'B' or class 'C' permit holder, or for any minor to buy or attempt to buy or to secure or attempt to secure beer from any person, and it shall further be unlawful for any person to offer beer, with or without consideration, to any minor, except within a private home and with the knowledge and consent of the parent or guardian of said minor. A violation of the provisions of this paragraph by any holder of a class 'B' or class 'C' permit or any of his agents or employees in connection with the operation of a beer business under said class 'B' or class 'C' permit shall be a mandatory ground for revocation of said permit, in addition to other mandatory grounds provided in this chapter.'

Chapter 124 of the Code, I.C.A., of which the above-quoted section is a part, also contains a general penalty clause, providing punishments for 'Any person who violates any of the provisions of this chapter'. Section 124.37.

I. The major contention of defendant, and the only one which we find it necessary to consider, is that the burden was upon the state to show, not only that a sale was made to the minor through his agent or employee but that such sale was with the defendant's knowledge or consent. He raised this question by motion for directed verdict, both at the close of the state's evidence and at the close of all the evidence; and by exceptions to the instructions in which the court told the jury that it might find defendant guilty if the sale was made either by him personally or by his agent or employee.

Generally, a criminal intent is essential before it can be said that an offense has been committed. Within certain limits, however, the legislature may forbid the doing or require the doing of an act and make its commission or omission criminal without regard to the intent or knowledge of the doer. 22 C.J.S. Criminal Law, §§ 29-30, pp. 84, 85, 86.

Whether intent is a necessary element of a statutory crime is a matter of statutory construction. We said, in State v. Dunn, 202 Iowa 1188, 1189, 211 N.W. 850, 851: 'Whenever a criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design.'

We have held that such construction leads to the conclusion, in some cases, that intent or knowledge are not required, and that a defendant may be convicted of an offense which he had no thought of committing, and when he had no knowledge that he was violating the law. State v. Dobry, 217 Iowa 858, 250 N.W. 702; State v. Dunn, supra. Closely related to these two is State v. Striggles, 202 Iowa 1318, 210 N.W. 137, 49 A.L.R. 1270, in which it was determined that the reliance of the defendant upon a lower court holding that a certain machine was not a gambling device did not protect him from conviction for keeping a gambling house, when the inferior court's holding was later held to be erroneous.

But we think it should be, and is, the law that the legislative intent to eliminate guilty knowledge should be clearly apparent. It is true that criminal intent is said not to be involved in an accusation of selling intoxicating liquors. State v. Fountain, 183 Iowa 1159, 1163, 168 N.W. 285; 48 C.J.S., Intoxicating Liquors, § 214, p. 339. But we must not confuse criminal intent with knowledge. 48 C.J.S., supra, says:

'Usually as the statutory offense is committed by the doing of the prohibited act, a guilty or criminal intent is not a necessary part of the offense;' * * *. But immediately following is this: 'The only intent necessary is an intent to do the prohibited act.' (Italics supplied.) That is to say, while an intent to break the law is not essential, a knowledge of the act itself is required, at least in the absence of an expressed legislative intent otherwise.

In State v. Striggles, supra, the defendant knew of the presence of the prohibited gambling devices; but he did not know that they were prohibited. He had knowledge of the doing of the act, and so his intent to violate the law was held not essential. So in State v. Fountain, supra; intent was held not material, but there was a clear implication that defendant had knowledge that intoxicating liquors were actually sold on his premises.

In State v. Probasco, 62 Iowa 400, 17 N.W. 607, the statute made it unlawful for the keeper of a billiard saloon, or his employees, to permit minors to remain in the place. In Church v. Higham, 44 Iowa 482, and Dudley v. Sautbine, 49 Iowa 650, the applicable statute, section 1539 of the Code of 1873, forbids any person, by agent or otherwise, to sell intoxicating liquors to anyone who was in the habit of becoming intoxicated. Convictions in these cases were upheld; but in each of them the legislative intent to make the owner or employer liable for the acts of his agents was clearly expressed.

It is further well-settled law that penal statutes are to be strictly construed; and in case of doubt, such doubt is to be resolved in favor of the accused. State v. Cooper, 221 Iowa 658, 666, 265 N.W. 915; State v. Andrews, 167 Iowa 273, 149 N.W. 245; State v. Wignall, 150 Iowa 650, 128 N.W. 935, 34 L.R.A.,N.S., 507; In re Estate of Kuhn, 125 Iowa 449, 101 N.W. 151; State v. Lovell, 23 Iowa 304.

But in the end, each case of this kind must turn upon the proper construction to be placed upon the governing statute. If the judgment of the lower court here is to stand affirmed, it must be because the legislative purpose to do away with the requirement of intent or guilty knowledge, and to permit the accused to be punished for an offense committed by an agent or employee while he was absent from the premises, an offense which he had not sanctioned and of which he had no forewarning, is clear from the provisions of section 124.20. The statute fails to meet such a test.

It will be noted that the first sentence of the quoted paragraph of the statute makes it unlawful for 'any person' to sell, give or make available any beer to a minor. The second sentence makes a violation of this provision by a permit holder 'or any of his agents or employees' ground for revocation of the permit. The only criminal punishment, for a violation of the provisions of the first sentence, must be found in the general penalty section of Chapter 124, section 124.37. But in defining the crime and its punishment, the legislature did not see fit to include the words 'or any of his agents or employees', as it did in the latter part of the statute setting up grounds for revocation of license. We must conclude that it did not mean to make the permit holder guilty of a criminal offense, if committed by an agent or employee, unless he had intent or guilty knowledge. If it had such purpose, it could readily have said so in the same manner that it did in providing for revocation of the permit. Its failure so to do is most persuasive.

The same situation was before this court in State v. Bradley, 231 Iowa 1112, 1116, 3 N.W.2d 133, 135. A statute prohibited keeping or using any liquor for beverage purposes of an alcoholic content greater than four per cent upon the premises of...