People v. Longwell

Grant, C. J. The respondent, a druggist, was convicted of selling liquor contrary to Act No. 207, Pub. Acts 1889. His defense was that the sale was made by his clerk, contrary to his general instructions. Should this defense have been submitted to the jury? We think not. The statute provides that “any person who himself, or by his clerk, agent,, or employé, shall violate any of. the provisions,” etc. It is conceded, in statutory crimes* of this character, that the legislature may do away with | the intent as an ingredient of the offense, and make the {' act itself criminal, whether it is done by himself or by his/ clerk, agent, or employe. Chief Justice Cooley, in People v. Roby, 52 Mich. 577 (50 Am. Rep. 270), clearly draws the distinction between those cases where intent is a necessary ingredient of the crime and where it is not, and has cited numerous authorities. The first inquiry, then, is, What does the statute mean ? It is not a case for interpretation. The language is unequivocal, and makes the druggist liable for any violation of the law by his clerk, agent, or employé. It is pertinent to examine some prior decisions of this court which are relied upon. The first is Faulks v. People, 39 Mich. 200 (33 Am. Rep. 374). That opinion does not cite the statute under which the conviction was had. An examination of the record of the case shows that it was Act No. 193, Pub. Acts 1877. That act does not contain the words, “or by his clerk, agent, or employé.” It is limited to the person actually making the sale. [313] In People v. Parks, 49 Mich. 333, respondent was convicted under section 12 of Act No. 259 of the Public Acts of 1881, which reads as follows: “All persons engaged in the business of selling or keeping for sale any of the liquors mentioned in sections 1 and 2 of this act, whether as owner, or as clerk, agent, or servant, shall be equally liable as principals for any violation of any of the provisions of this act.” By reference to section 2 of the same act it will appear that “the fact of selling, giving, or furnishing any of said liquors to any minor or to any intoxicated person * * * shall be a prima facie presumption of an intent on the part of the person so selling, giving, or furnishing such liquor to violate the law.” Two things are apparent under this act: (1) That it contains no language making the owner responsible criminally for the act of his clerk, agent, or servant, and (2) that, while the intent was an ingredient of the offense, that intent was to be presumed from the act of selling, etc., and cast the onus probandi upon the liquor seller to show the absence of intent. In People v. Metzger, 95 Mich. 121, the point was not involved. What was said, therefore, is dicta. An examination, however, of section 13, Act No. 313, Pub. Acts 1887, under which the respondent was convicted, will show that the language is substantially the same as the act of 1881, and makes the act itself prima facie evidence of the intent. Section 24 provides that “any person or principal shall be liable for the acts of his clerk, servant, agent, or employé for any violation of the provisions of this act.” Where an ■ act contains provisions apparently in conflict, courts will construe them, if possible, so that both shall stand. It would undoubtedly, therefore, be properly held that section 24 did not take away the defense of want of intent, but left a respondent to show such want of intent on his part. It is manifest, therefore, that both the acts of 1881 and 1887 make an intentional participation an ingredient of the offense. They only shift the burden of proof. [314] Black cites the statutes of several States containing provisions like the one under which respondent was convicted, and states: “It is held to be no defense to an indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and bona fide orders.” Black, Intox. Liq. § 370, and authorities there cited. Black closes the section with the following language: “The object of these statutory provisions, in effect, is to require the principal to see to it, at his peril, that no unlawful sales aré made in his establishment. And, if it savors of severity to subject him to punishment for the acts of others which he had expressly forbidden, it must be remembered that he can escape liability by selecting servants and agents who will keep- within the law, and obey his orders, or by abandoning a business which exposes him to such hazards.” The statute in unequivocal language makes the druggist responsible for the acts of his clerk in making these illegal sales. It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law, The conviction is affirmed. Montgomery, Hooker, and Moore, JJ., concurred with Grant, O. J.