Robinson & Warren v. State

English, C. J. The court charged the jury: “That if they believed, “from the evidence, beyond a reasonable doubt, that at the •saloon of defendants, in the town of Atkins, county of Pope, ■etc., within twelve months before the finding of the indictment, the defendant, Robinson, sold to the witness, Lazenby, ■one pint of ardent liquors, without the written consent or order •of his parent or guardian, and that said Lazenby was under twenty-one years of age at the time; that although the ■defendant, Warren, may not have been present at the time, ■or have known or had any knowledge of such sale, if the jury believe that he was a partner in business with the defendant, Robinson, and a joint owner with him to and of the liquor sold to said witness, they will find each of the •defendants guilty, and assess their punishment at a fine of ;not less than $50 each, and not more than $100.” To this charge defendants • excepted. The jury found •defendants guilty, and assessed their punishment at a fine ■of $52.50 each. A new trial was refused them, and they took a bill of exceptions. Pinal judgment was rendered in accordance with the verdict, and both defendants brought •error. OPINION. »ai liawiity oí part- Plaintiffs in error, Robinson & Warren, were partners in a saloon. Robinson made a criminal sale of liquor to a minor, at the saloon, in the absence and without the knowledge of his partner, Warren. Was Warren also criminally liable for the sale? Section 1608, Gantt’s Digest, made it a criminal offense for any person to sell to or buy for a minor any kind of intoxicating spirits, without the consent or order, in writing, •of the parent or guardian of such minor. In Cloud v. State, 36 Ark., 152, it was held that in prosecutions under that Statute, the general rule of law, as to criminal agency applied: That if liquor was sold to a minor by a clerk or partner of appellant, in his absence? and without his direction, authority, consent or approbation, though a part owner of the liquor, he would not be liable, upon the general principle that a man is not responsible for the criminal acts of his partner or agent. That they must answer for their own criminal conduct. Section 19 of the Act of March 8th, 1879 (Acts 1879, p. 38), under which plaintiffs in error were indicted, and both convicted, provides that : “Any person, who shall sell, either for himself or another? or be interested in the sale of any ardent, vinous, malt, or fermented liquors, or any compound or preparation thereof? called tonics, bitters, or medicated whisky, to any minor? without the written consent or order of the parent 01-guardian, shall be deemed gujlty of a misdemeanor ; and on conviction thereof, shall be fined in any sum not less than fifty, nor more than one hundred dollars.” Section 5, of the same Act, makes persons selling ardent spirits, etc., for themselves, or others, or interested in such sales, without license, criminally liable. Plaintiff, Warren, was interested in the sale made to the minor, by his partner, and his case is within the letter of section 19 of the Act. A Statute of Mississippi prohibits the sale of spirituous liquors to persons intoxicated, and makes the seller, and also any person interested in the liquors sold, liable to indictment. Whitton & Ford were indicted for selling-liquor to one G-reer, when intoxicated. The proof was, that Whitton & Ford kept a licensed grocery, and that Whitton sold liquor to G-reer, when intoxicated, in the-absence, and without the knowledge of Ford. The. court, charged the jury, that it was immatei’ial whether both the-defendants sold the liquor or not, provided both had ant interest in the liquor sold. Both the defendants were convicted, and brought error ; and the High Court of Errors •and Appeals affirmed the judgment. Whitton & Ford v. State, 57 Miss., 379. Justice Handy, who delivered the opinion of the court, after stating the facts of the case, said: “ The first error assigned, is to the following instruction, given at the instance of the State, etc., that it is immaterial whether both defendants sold the liquor or not, provided both had an interest in the liquor sold. “It is insisted that this instruction was erroneous, because a partner is not liable, criminally, for the criminal acts of his co-partner, or his agent, employed to do his legal business. “ This is true, as a general rule of law, and if . the instruction was supported alone by general principles the objection to it would prevail. But the Statute, in relation to the subject, establishes a new rule of evidence, affecting the responsibility of parties so situated. It prohibits, among other things, the sale of any vinous or spirituous liquor, by any person having license to retail the same, to any person then being intoxicated; and provides, that the person so offending (and also any person who may own, or have any interest in any vinous or spirituous liquors, sold contrary to this act), shall be liable to indictment,” etc. Rev. Code, 199, Art 9. “It is admitted that Ford was a partner in the grocery, and interested in the liquor charged to have been sold. The rule, then, declared by Statute, renders him responsible for the illegal acts of his partner, done in the course of the partnership business, whether he participated in the act or not; and the instruction is sanctioned by the Statute. But it may be said, that to give the Statute such a construction would be contrary to the principles of natural justice, and oppressive. This view might be taken with better reason ; and, in order to ascertain the true construction of the Statute, if there was any room for doubt upon it. But the terms of the Statute are plain aud explicit, and there is no-room for construction upon the point raised by the objection under consideration. Its object is as plain as its terms are clear. It was intended to reach a grievous evil in the community, by which persons of more or less responsibility, engaged worthless and profligate persons in the business of retailing spirituous liquors, for the profit of their employers,, in violation of the law of the land, resorting to all sorts of pretences, artifices, and frauds, to conceal the violations of law, or the guilty participation of the principals in it. The evil required a stringent process to reach it, and the Legislation designed by the Statute, in some degree, to meet and prevent it. Persons, who, by this means, set up and enable-others to engage in a business, which, in its very nature is-almost inseparable from violations of law, have no right to complain that the tribunals of justice are clothed with adequate powers to drag them from their concealment, and to visit upon them some slight degree of punishment for the misery and crime which they have been instrumental in inflicting upon the community within the rauge of their influence.” Smith v. Village of Adrian, 1 Michigan, 495, seems to be in point. The village of Adrian prosecuted Smith by a. penal action for selling spirituous liquors without a license. It was proved, on the trial, that Smith & Manning were engaged, as partners, in keeping a recess, in the Franklin House, in the village of Adrian ; and the trial court permitted the acts of Manning to be given in evidence against Smith. The Supreme Court sustained this ruling, holding that Smith, being a partner of Manning, and participating in the profits of the unlicensed sales, was responsible for his acts, under the Statute regulating the business of selling liquors. By the Act of March 8th, 1879, the Legislature has, in effect, declared that persons interested in the sale of ardent spirits, etc., shall be criminally responsible for illegal or forbidden sales, whether made by themselves or their partners, or employees, in the business. This is a departure from common law principles, and a new feature in the legislation of this State. The whole act is but a police regulation of the sale of ardent spirits, etc., and the feature in question violates no clause or provision of the Constitution. The law says to persons wishing to engage in selling spirituous liquors, or to be interested in sales thereof, you must be careful in the selection of your partners, or servants, and watchful of their conduct in your business ; for if they make forbidden sales, you are responsible. You must see that sales, in which you are interested, are not made without license, nor made to minors, without proper permission from their .parents or guardians. If you are not willing to engage, or be interested in the business, on these terms, there is no compulsion upon you to do so. Retaii- On the subject of retailing spirituous liquors, there can be no assertion of a natural right, or appeal to natural justice. The whole subject is within the police power of the State, (34 Ark., 397), and persons engaging in the business must submit to such regulations, terms and burthens as the Legislature has deemed it expedient to prescribe for the public good. Eobinson & Warren were partners, in a saloon. Robinson made an illegal sale of liquor, to a minor, at the saloon, and in the partnership business. Warren, though absent.at the time of the sale, and without proof that he had knowledge of it, is subject to indictment, as well as Robinson, under section 19, of the Act of March 8th, 1879. Such is the conclusion of the court in this case. If it be thought that the law, in conjectural cases, may-work a hardship, persons engaged or interested in the sale of liquors, must apply to the Legislature to repeal or amend it; the courts can do neither. If it be said that Warren may have forbidden his partner to make illegal sales to minors, may have repudiated this very sale, and refused to share in its profits, it is sufficient to reply that he offered no such proof. We are deciding the case as presented in the transcript, and not an imaginary case. Affirm.