Schullherr v. State

Cooper, J., delivered the opinion of the court. We do not construe the modifications of the 4th and 5th instructions for the defendants as announcing, as is supposed by counsel for appellants to be the case, that it is a violation of the bond of one licensed to sell intoxicating liquors to sell such liquors to one person, the dealer knowing at the time that such person designed to furnish the liquor so purchased by him to an intoxicated person. If such was the tenor of the modifications by the court, we should concur in the opinion of counsel that error had been committed. But Beinach, the retailer, does not in his testimony put that complexion upon the sales. Casteel, the intoxicated person, was in a drunken debauch at the house of Emma Hannah, to whom Beinach had been authorized by him to sell on his credit anything she might desire to buy. By reason of such authorization, Beinach contends that a sale by him of liquor for the use of Casteel, and to be paid for by him, was a sale to Emma if she gave the order to the messenger sent for the liquor. Under such circumstances, we have no hesitancy in declaring that the real sale was to Casteel, and that Beinach’s pretense of a bona fide sale to Emma was a transparent subterfuge wholly unsupported by any testimony. Whether the license of Beinach was or was not properly authorized by the municipal authorities is immaterial. It does not lie in the mouth of Beinach, who received and acted upon such license, nor with his sureties, who became bound that he so acting would not violate the statute, to deny the validity of such license. As against him and them, the license is to be considered as issued in conformity to law, because neither he nor they stand in a situation to deny that fact. The judgment is affirmed.,