State v. Finan

Stockton, J. The defendant was convicted on an information charging him with selling and giving away intoxicating liquors, contrary to the statute. On the trial exception was taken to the charge of the court to the jury, to the refusal of the court to admit certain evidence offered by defendant, and to the overruling, .defendant’s motion in arrest of judgment and for a new trial. The first assignment of error is upon the refusal of the court to arrest the judgment. The motion in arrest of judgment was upon the ground that the facts set forth in the information do not constitute a public offense. The information charges that defendant, “ on the 1st August, 1858, did unlawfully sell and give away intoxicating liquors, to one H. H. Helton and other persons whose names are unknown.” It is not an offense under the statute, to give to any other persons intoxicating liquors, unless, as expressed in section 6, acts of 1854-5, chap [21] ter 45, p. 58, “they be given in consideration of the purchase of any other property.” In which case, upon an averment that the liquors were given to a person, the fact that they were given in consideration of the purchase of other property should be averred, in order to constitute the offense. The averment in this caséis that the liquors were both “ sold and given.” The selling is made a punishable offense, and it is no objection to the information that it alleges farther that the liquors were “ given.” A description that is good will not be affected by an addition that is void. Utile per inutile non vitiatur. The information, in our opinion, sufficiently describes an offense punishable under our laws. Other objections taken to the information, which do not amount to sufficient cause for arresting the judgment upon an indictment under section 8054 of the Code, and which might with more propriety have been urged upon demurrer to the information, are not considered. The second assignment of error is upon the refusal of the court to grant a new trial. The motion for a new trial was for the cause that the court had misdirected the jury. The evidence tended to show, that at the time when the offense is alleged to have been committed, one Manning was carrying on business as the owner or proprietor of the premises where the liquor was sold, and that the defendant, although he dealt out the liquors and received payment therefor, was not the principal, or agent, or servant, of said Manning, and that intoxicating liquors were sold to others than the said Helton, as alleged in the information. The defendant thereupon asked the 'court to instruct the jury: 1. “ That if they believed from the evidence that the defendant was not the proprietor of, and carrying on business as principal in the premises in which said liquor was sold, but was acting in the capacity of clerk or agent of Manning, the owner and proprietor of the premises, they must find the defendant not guilty. 2. That if they believed from the evidence that defendant was not pecuniarily interested in sélling intoxicating liquors on said premises either as prin [22] cipal or agent, but merely dealt out said liquors as a volunteer, without authority from the owner or proprietor of said establishment, and without pecuniary reward for so doing, they must find the defendant not guilty.” The court refused to instruct the jury as requested and charged them : “ That if they believed from the evidence that defendant, either for himself, or as agent or servant for another, sold, or in consideration of the sale of the property, gave to any one intoxicating liquors between the times charged in the information, they must find the defendant guilty as charged.” The statute provides that “ if any person, by himself, his clerk, servant or agent, shall for himself, or any person else, directly or indirectly, or on any pretence, or by any device sell, or, in consideration of th& purchase of any other property, give to any other person any intoxicating liquors, he shall be deemed guilty of a misdemeanor, &c.” The defendant can not, therefore, be allowed to escape the consequences of his act, by showing that he was the clerk or agent of Manning, or that he sold the liquor as a volunteer, without the authority of Manning, and without pecuniary reward. There can be no question but that the liquor was sold by him for Manning, and whether with or without authority, or with or without reward is not material. The instructions were-properly refused. On the trial of an information which charged the defendant with selling intoxicating liquor to one ITelton, it was hardly proper for the court to instruct the jury that, “if the defendant sold liquor to any one, within the time laid in the information, he was guilty as charged.” If the information charged that the liquor was sold to Hel-ton alone, it would not be sustained by proof of a sale to any other person. But in this instance the information alleges that the intoxicating liquor was sold to “Helton and other persons whose names are now unknown.” The testimony was that the defendant sold the liquor and received payment therefor, and that it was sold to other persons than the said Helton. Under this state of facts, we think there was no er [23] ror to prejudice of the defendant, in the instructions given by the court. The defendant offered to introduce the record of B. Bryant, Esq., a justice of the peace of Polk county, and to prove by the same that the said Manning, the proprietor of the premises where the liquor was sold, had been convicted of the offence of selling intoxicating liquors to said Helton between the times set up in the information against defendant, and for the same offence with which defendant was now charged. The court refused to receive the evidence, and this is the third error assigned. The statute provides that “all clerks, servants and agents, of whatever kind engaged or employed in the manufacture,, sale or keeping for sale, in violation of the act, of any intoxicating liquors, shall be charged and convicted in the same manner as the principal may be, and shall be subject to the same penalties.” Acts of 1853, chapter 45, section 6. It is no defense for the agent, that his employer is guilty or has been convicted of the same offense with which he himself stands charged; and the evidence, if admitted, would not have had the effect to exculpate the defendant. It was therefore properly excluded. Judgment affirmed..