Harney v. State

Cooper, J., delivered the opinion of the court. The plaintiff in error was presented for that he “did sell and tipple an intoxicating beverage within [114] four miles of an incorporated institution of learning.” The only witness examined on the trial testified that the plaintiff in error bought of the witness a drink of whisky within four miles of the Vanderbilt University, admitted to be an incorporated institution of learning. The trial judge charged the jury that if they found that the plaintiff in error had bought a drink of whisky within four miles of the university, he would be guilty as charged in the presentment. The jury found him guilty, and he has appealed in error from the judgment rendered on the verdict. The act of 1877, ch. 23, under which the presentment was found, provides that it shall not be lawful for any person to sell or tipple any intoxicating beverage within four miles of an incorporated institution of learning in this State, and that any person violating the act shall be guilty of a misdemeanor. A tippling house is a place where spirituous liquors are sold and drank in violation of law: Bouv. Law Die. Sub voce. Or, as defined by this court under our statutes, a place where spirituous liquors are sold, Avithout license, in less quantities than a quart, or in any quantity, to be drank at the place: Dunnaway v. State, 9 Yer., 350; Sanderlin v. State, 2 Hum., 315. The word tipple in the act of 1877 means to sell to be drank at the place of sale. The question is, therefore, squarely presented whether, as the trial judge charged, the person who buys liquor sold contrary to the provisions of the act is equally as guilty as the seller, and punishable under an indictment which charges him as the seller. [115] The general rule undoubtedly is, that in misdemeanors all who are in any manner concerned, if •guilty at all, are principals, and may be proceeded against accordingly: Curlin v. The State, 4 Yer., 143. And, under a statute which forbade the sale of liquor by a slave, this court sustained an indictment against a white man for buying liquor from a slave, which •charged him with aiding, abetting and encouraging the sale: State v. Bonner, 2 Head, 135. The learned judge who delivers the opinion says that, upon gen•eral principles, the purchaser of spirituous liquor, in violation of the statutes passed to suppress tippling, is as much guilty of a violation of the law, and as much amenable to criminal prosecution and punishment, as the seller. And there can be no doubt, upon the strict principles of the law carried out to their logical result, that the statement is warranted. But it is easy to see that, in the particular case before the •court, the condition of the vendor as a slave might well induce the court to consider the penalty of the act as directed against the white man who enticed him to sell. And- the practice has never prevailed in this State, under the ordinary statutes againsfc •tippling, to extend the ' punishment to the purchaser. “Ho such prosecution,” to borrow the language of Chief Justice Shaw upon the same question in Massachusetts, “has been attempted within the knowledge •of the court, although a similar law has been in force almost from the foundation of the government, and thousands of prosecutions and convictions of sellers have been had under it, most of which have been [116] sustained by tbe testimony of the buyers.” The chief’ justice admitted that it was difficult to draw any precise line of distinction between the cases in which the-law holds it a misdemeanor to counsel, entice or induce another to commit a crime, and where it does, not. But he thought that the principle might be-limited to offenses which are mala in se, in contradistinction to mala prohibita, or acts otherwise indifferent than as they are restrained by positive law. And the court held that the buyer was not indictable unr der a statute which prohibited the sale of liquors : Commonwealth v. Willard, 22 Pick., 476. Mr. Bishop, while conceding the general principle to be as laid down in The State v. Bonner, finds that it is not rigidly applied to the lighter misdemeanors, because of the smaller degree of blame involved in the offense, or the special terms of the statute creating it. “If,” he says, “the terms of a statute distinctly limit the penalty to persons who participate in the act only in a certain way, those terms furnish the rule of the court. Or, if the expression is general, but the offense is of minor turpitude, and especially if it be only malum prohibitum, the courts, by construction, will limit its operation to those persons who-are more particularly within the reason or the express words of the enactment”: 1 Bish. Crim. Law, sec. 657. The same idea is a little differently expressed by Smith, J., in delivering the opinion of the Supreme Court of New Hampshire upon the question now being considered: “In cases of mala prohibita, the fact that the penalty is in terms imposed upon only one of [117] two parties whose concurrence is requisite to- the commission of the offense, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for' giving the statute a construction exempting ' the party not named from criminal liability The State v. Rand, 51 N. H., 361. One main object of the statute under consideration was to prevent the sale of liquor to the young students at the educational institutions of the State. Laws having the same object in view have long been on o.ur statute books: Code, secs. 4862-3. The Legislature could scarcely have intended that these young boys, who might be thoughtlessly led into temptation, should be visited with the heavy punishment of the statute under consideration, — a fine of not less than $100 and imprisonment of not less than one month. They were intended to be protected, not punished by the statute. If, moreover, the buyer is equally guilty with the seller, .he cannot be compelled to testify to a violation of the law, and almost the only means of punishing the offense at all will be cut off. For these reasons, we think his Honor erred in his charge, and reverse the judgment.