People v. Journeau

Ostrander, J. (after stating the facts). The reasoning of the opinion in People v. Soule, 74 Mich. 250 (2 L. R. A. 494), in which it was determined that a social club was engaged in the business of selling liquor within the meaning of the statute, is that the liquors purchased and kept by the club were, before being given to members of the club, the property of the corporation, and, when passed to the member and paid for by him, became his property, the transaction amounting to a sale and delivery of the liquor by the owner and a purchase of it by the member. This is also the reasoning of the opinions referred to and relied upon in that case. Plainly, the conduct of the respondent in the case at bar may have been innocent and she a mere errand doer [522] for others; and People v. Soule, supra, is authority for the proposition that a mere agent in procuring liquor is not a seller, and his acts as agent would not amount in law, as they did not in fact, to engaging in the business of selling liquor. Whether in a given case the respondent has acted as a mere intermediary of the buyer, or, in fact, as seller, must be determined from the whole evidence (Black on Intoxicating Liquors, § 408), and is usually a question for a jury. The evidence did not warrant the court in directing the verdict. Campbell v. State, 79 Ala. 271; White v. State, 93 Ga. 47; Com. v. Smith, 102 Mass. 144. State v. Buck, 37 Vt. 657, cited by counsel for the people, arose under a prohibitory liquor law. The case should have been submitted to the jury with instructions that if respondent was, in good faith, acting occasionally as an intermediary for her patrons, the buyers of the liquor, she should be acquitted. If her conduct, in view of all the evidence, was a mere subterfuge, and it was a part of her business to sell liquor to those who came to her place for liquor, she should be convicted. The conviction is set aside, the record remanded, and a new trial ordered. Blair, Montgomery, Hooker, and Moore, JJ., concurred.