Monaghan v. State

Abnojjd, C. J., delivered the opinion of the court. The doubt suggested by the attorney-general, based on the decision of the supreme court of Massachusetts, in Com. v. O’Leary, 143 Mass. 95, in regard to the propriety of the action of the court in giving and refusing instructions, is well founded. The instruction for the state should not have been given, and that asked by the appellant should not have been refused. Beene, the minor, acted merely as the agent of Stovall, the adult, in the matter. Beene informed the clerk, when he obtained the liquor, that it was for Stovall — it was paid for with Stovall’s money, and was taken to the place designated by Stovall, and he received it without its being opened by the minor. These facts are shown by the state’s witnesses, and they are not controverted. In legal contemplation, the sale was to Stovall and not to Beene. Com. v. Lattinville, 120 Mass. 385 ; Seigle v. People, 106 Ill. 89 ; Yowng v. The State, 58 Ala. 358 ; Johnson v. The State, 63 Miss. 228 ; Com. v. Remby, 2 Gray 508. To “ sell ” liquor to a minor is what is forbidden by the statute. Code, § 1115. Merely to deliver liquor to a minor, with notice that it is to be carried to an adult, is not a sale within the meaning of the statute. Com. v. Lattinville, 120 Mass., supra. We cannot extend the terms of a criminal statute beyond its clear legal meaning. We cannot construe the word “ sell ” in the statute to mean something different from its ordinary legal import. Undoubtedly, a minor may be an agent or lawfully go on errands for an adult, and a person may buy through an agent, and in such case, there being no question of the fact of agency, although the dealing is with the agent, and the delivery is to him, in legal effect the sale is to the principal. The law is, that where a person contracts as agent, or he is known to be such, the contract is with the principal, and not with the agent; but where the agent deals in his own name, and the principal is not disclosed or known? .the contract is with the agent and he is liable. 2 Kent Com. *631. [515] If it appears from this view, that the statute under consideration may be easily evaded, that only proves the necessity of its amendment. It furnishes no excuse for supplying by judicial construction what is palpably omitted from it. Seigle v. People, 106 Ill., supra. Reversed and remanded.