State v. . Kittelle

15 S.E. 103, 110 N.C. 560

• Court: Supreme Court of North Carolina
• Decided: February 5, 1892
• Status: Published

Opinion

SHEPHERD, J., dissenting. The defendant Kittelle was, at the time of the alleged sale, the proprietor of the Buford Hotel, in Charlotte, and of the bar connected therewith. The defendant had two clerks in his barroom. Shuman testified that he was a minor and unmarried, and that one of the clerks sold him beer, but he could not state which one it was, and that Kittelle was not present when he bought the beer. The defendant Kittelle testified that he had given his clerks "special instructions not to sell liquor to minors or on Sunday, and otherwise to comply with the law"; that he closely scrutinized the conduct of the clerks, and if liquor had been sold to Shuman, or to any other minor, it was done "without his knowledge, in violation of his instructions and against his wishes." Kittelle was a licensed retailer. This was the substance of the evidence.

The defendant Kittelle requested the court to instruct th jury that if his clerks had sold liquor to the minor Shuman, without defendant's knowledge, in violation of his instructions and against his wishes, they should acquit him. The prayer was refused, and the court charged the jury that if they found that either of the clerks had sold to Shuman, they should convict the defendant Kittelle. Defendant excepted. Verdict, judgment, and appeal. (561) The Code, secs. 1077 and 1078, makes it a misdemeanor for any dealer in intoxicating liquor to sell directly or indirectly, or give away, such liquor to any unmarried person under 21 years of age, knowing such person to be under that age, and that such sale or giving away shall be primafacie evidence of such knowledge, and further, that the father, mother, guardian, or employer of a minor to whom intoxicating liquor shall be sold or given away may maintain an action for exemplary damages, and that in no case can the jury award the plaintiff a less sum than $25.

The defendant contends that no one can be held criminally liable for an act which is done without his knowledge or consent. This is the strength of his contention. It is, in substance, that guilt cannot be attributed to him in this matter, because guilt consists in the intention, and that he had no intention to violate the law, because he neither knew of nor consented to the sale. There is, however, a well defined distinction between those acts which are criminal only by reason of the intent with which they are done, and those in which the intent to commit the forbidden act is itself the criminal intent. As to this very matter of the sale of spirituous liquor to minors, it has often been held that the lack of intention to violate the law did not exculpate, if, in fact, the defendant did the act, or authoried [authorized] it to be done, which constituted a breach of the law. S. v. Wool, 86 N.C. 708; S. v. McBrayer,98 N.C. 619; S. v. Scoggins, 107 N.C. 959; S. v. Lawrence, 97 N.C. 492; Farrell v. The State, 30 Am. Rep., 614, and numerous (562) cases cited in the notes thereto.

A principal is prima facie liable for the acts of his agents done in the general course of business authorized by him, as where a barkeeper sells liquor, or a clerk sells a libel, or prints one in a newspaper. 1 Whar. Cr. Law, 247, 341, and 2422. And a vendor of spirituous liquors is indictable for the unlawful sale by his agent employed in his business, because all concerned are principals. 2 Whar. Cr. Law, 1503. In Carroll v.The State, 63 Md. 551, it is held that if, in the conduct of the business of selling liquors, a prohibited sale is made by the agent to a minor, the principal cannot shield himself from liability on the ground that his agent violated his general instructions, and did not inquire, or was deceived by the purchaser as to his age; that while deriving profit from the sale, the principal cannot delegate his duty to know that the purchaser is a lawful one to the determination of an agent and be excused by the agent's negligence or error; that intention not being an essential ingredient of the offense, the principal is held bound for the acts of his agent in violation of law while pursuing his ordinary business as such agent; being engaged in business where it is lawful to sell only to such persons as are not excepted by law, it is hisduty to know, when a sale is made, that it is to a properly situated person, and therefore it is his duty to trust nobody to do his work but some one whom he can safely trust to discharge his whole duty, and if he does not do so, the law holds him answerable. The same is held in S. v.Denson, 31 W. Va. 122; S. v. Dow, 21 Vt. 484; and to the same effect are numerous other decisions. 11 A. E., 718.

The same principle of the principal being criminally liable for the misconduct of his agents applies to many other offenses. In the leading case of Rex v. Gutch, M. M., 433, cited in 1 Taylor Ev., 827, which was a prosecution for libel, Lord Tenterden said: "A person who derives profit from, and who furnishes the means for carrying on, the concern, and entrusts the business to one in whom he confides, may be said to have published himself, and ought to be answerable." (563)

In Redgate v. Hayes, L. R., 1 Q. B. Div., 89, the defendant was charged with suffering gaming to be carried on upon her premises. She had retired for the night, leaving the house in charge of the hall porter, who withdrew his chair to another part of the hotel and did not see the gaming. It was held that the landlady was responsible. The same principle was maintained in Mullins v. Collins, L. R., 9 Q. B., 292, where the servant of a licensee supplied liquor to a constable on duty, and the court held the licensee answerable, though he had no knowledge of the act of his agent.

In the present case, had the defendant himself sold the liquor to the minor, he would be fixed prima facie with the knowledge that the purchaser was a minor. The contention of the defendant that such prima facie knowledge is rebutted by the fact that he was not personally present omits consideration of the fact that the knowledge of the agent is the knowledge of the principal. This is always true, though the intent of the agent (when material) is not necessarily the intent of the principal. The law requires the county commissioners to issue license to retail liquor only to persons whom they shall find properly qualified. This is construed in Muller v.Commissioners, 89 N.C. 171, to mean that, among other things, the applicant must possess a good moral character. It would be a vain thing to require the commissioners to take the pains and trouble to ascertain whether the applicant is properly qualified, and to reject him if he is not, if the licensee may immediately upon opening his bar set up as his clerk another applicant who has, perhaps, just been rejected by the county commissioners, after due inquiry, as not properly qualified, and may claim, upon a violation of the law by such clerk, that he, the licensee, is not liable, because he had instructed his clerk when he employed him not to violate the law, had often visited his barroom without seeing any sales made to (564) minors, and no one had informed him that such sales were being made. If such were law, the safeguard intended to be obtained by placing the licensing power in the hands of the county commissioners, who shall issue license only to those whom they find "properly qualified," would be a delusion and a sham. If the only safeguard is an indictment of the person actually selling, that exists against the principal, and there would be no need of requiring a license of anyone.

The defendant's clerks had no license to retail liquor. Every sale by them to anyone is indictable, and the defendant is indictable with them as coprincipal (there being no accessories in misdemeanors) for aiding and abetting them in their illegal traffic, unless it is true thattheir sales are his sales. If it is valid to protect such sales by them under the authority of the license to him, then their sale is also his sale to make him liable if the terms of the license are not complied with. The licensee cannot put his clerks in his shoes, give them the benefit of the license issued to him upon the confidence reposed in his moral character, and not be held responsible for their violations of the law in the scope of such employment. He cannot set up his bar, receive its profits, and abdicate his duties. The duty is imposed on him that the law shall not be violated by a sale to a minor. Here the sale was to a minor. The defendant put it in the power and authority of the clerk to sell. It was the defendant's own risk and peril that he was not present, and that he did not make the sale himself. That his agent did not obey his instructions, and negligently or purposely violated the law, does not exculpate the defendant. The law has been violated. It looks to the man it authorized to sell — the licensee — this defendant. The sale by the clerk was in law a sale by the principal, and the violation of the law must be laid upon the defendant, who gave (565) the clerk the means and the authority to sell, but did not take proper care in selecting his agent or use means sufficient to prevent illegal sales by him. It will not do for the defendant to say that he authorized legal sales and the clerk made illegal sales. The law authorized the defendant to sell. Whether his sales are legal or illegal is at his peril, and it can make no difference whether he sells by his own hands or through an agent whom he improperly selected or insufficiently supervised. The violation of the law is at the door of the man whom alone the law authorized to sell. The agent or clerk (if identified) is also liable as aiding and abetting in the illegal sale. S. v. Wallace,94 N.C. 827.

Either the licensee is responsible for illegal sales by the clerk (S. v. McNeely, 60 N.C. 232) or the licensee has no authority under his license to sell through the medium of a clerk, and all sales must be by the person himself whom the commissioners have found "properly qualified," and have licensed to sell. Any other view of the matter would be illogical, andwould be a virtual repeal of the law. It would empower the barkeeper toappoint other as barkeepers, whom, perhaps, the county commissioners wouldhave refused to license. However well "qualified" the commissioners may find the party whom they license, there is no guarantee that he will select clerks who are so, or that he has the energy, the judgment, or the skill to prevent violations by them. The law will look to the man it licenses, and he must select his clerks and be responsible for them at his peril.

In Carroll v. State, supra, the Supreme Court of Maryland, upon a state of facts and a statute almost identical, comes to the same conclusion. It says: "When the agent, as in this case, is set to do the very thing which, and which only, the principal's business contemplates, namely, the dispensing of liquors to purchasers, the principal must be chargeable with the agent's violation of legal restrictions on the business. His gains are increased, and he must bear the consequences. The fact that he has given orders not to sell to minors only shows a bonafide intent to obey the law, which all the authorities (566) say is immaterial in determining guilt. The court may regard such fact, in graduating punishment, when it has a discretion. The cases, therefore, which hold that such orders will exculpate the principal are inconsistent with the rule that in such cases the intent is immaterial. If intent is not an ingredient in the offense, it logically follows that it must be immaterial whether such orders are given or not, for he who does by another that which he cannot lawfully do in person must be responsible for the agent's acts. In fact, it is his act. It cannot be that by setting another to do his work and occupying himself elsewhere and otherwise, he can reap the benefit of his agent's sales and escape the consequences of the agent's conduct. It would be impossible to effectually enforce a statute of this kind if that were allowed, and it would speedily become a dead letter." This case cited, also, McCutcheon v. The People, 69 Ill. 606, in which it is said: "It is immaterial whether the sale was made by an appellant or an agent. The agent had no license to sell to anyone, and it is only lawful for him to do so in the name and by the authority of his principal, and the presumption is conclusive that the agent or servant acted within the scope of his authority in making the sale." This latter case is cited and expressly followed in Noecker v. The People, 91 Ill. 494. To the same purport, that "when, in the absence of a saloonkeeper, a sale of liquor is made by his bartender, the directions of the former not to sell to minors will not exempt him from liability for the sale," are Muglerv. State, 47 Ark. 110; Edgar v. State, 45 Ark. 356; Waller v. State,38 Ark. 656; Loeb v. Georgia, 75 Ga. 258; Snider v. State, 7 S.E. Rep., 631; Whitton v. State, 37 Miss. 379; Riley v. State,43 Miss. 397; Dudley v. Sautbine, 49 Iowa 650, and many others; though in these cases the statute varies somewhat from that in this State.

(567) In People v. Roby, 50 Am. Rep., 270 (52 Mich. 577), and People v. Blake, 52 Mich. 566, it is held that "The owner of a saloon whose clerk, without his knowledge or consent, but while he was on the premises, opened it on Sunday morning to clean it out, and sold a drink to a customer, may properly be convicted of keeping a saloon open on Sunday." The opinion in the first-named case is delivered by Cooley, C. J., the eminent writer on Constitutional Limitations, and in the course of it he says: "As a rule, there can be no crime without a criminal intent; but this is by no means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible," and numerous incidents and precedents are cited to support the proposition. Bona fides was held also to be no defense in an indictment for extortion, S. v. Dickens, 2 N.C. 407; nor for unlawful voting, S. v. Boyette, 32 N.C. 336; S. v. Hart, 51 N.C. 389; nor generally in statutory offenses, S. v. Presnell, 34 N.C. 103.

The defendant relies on S. v. Privett, 49 N.C. 100. There the court charged the jury that if the principal instructed his clerk not to sell, he would not be liable for the sale by the clerk unless such instructions had been abrogated expressly, or by a course of conduct which would tacitly amount to the same. The appeal by the defendant, of course, could not bring up for review this charge which had been made in his favor; but Nash, C. J., takes occasion to say: "The defendant has, as we think, no cause to complain of his Honor's charge; it was as favorable to him as it could have been." And he adds: "As to (568) the effect of general instructions in such a case as this, it is not necessary for us to give an opinion. But we can say that if they are to have the effect given to them by the charge in this case, and in the argument of the defendant's counsel, the act under which this prosecution is had will be very easily evaded." This is a strong intimation, we take it, that if the correctness of the charge had been before the court it would have been reversed. Accordingly, in S. v.McNeely, 60 N.C. 232, it is held that a licensee may have a clerk or agent, "he remaining responsible for the good conduct of his agent."

The defendant also relied upon S. v. Divine, 98 N.C. 778, in which it is held that a statute making one railroad officer criminally responsible for the act of another was unconstitutional. We do not see the analogy. If the statute had forbidden the doing of a certain act by a railroad company, and provided that if it was done by any of the officers or agents of the company in the scope of their employment, the corporation, being the principal, should be indictable, the case would have been on "all-fours" with the present, and the act constitutional. Indeed, it is pointed out in that very case that the principal might be held criminally liable for the acts of the agent, but a coemployee could not. Without any express statute, corporations have been repeatedly indicted for the negligence, or nonfeasance, and misfeasance of their agents, when neither the corporation nor its managing officers had any intention to violate the law, and, in fact, had given instructions forbidding such acts. The corporation is held criminally liable, such instructions being, as in the present case, held not a matter of defense, but in mitigation of punishment. It is needless to cite cases. The doctrine is settled law.

The retailing of liquor is not a matter of natural right, and the whole subject is within the police power of the State, which can leave it unrestricted or hedge it about with regulations, or (569) forbid it entirely. Mugler v. Kansas, 123 U.S. 623, and countless other cases. When regulations are imposed, as in this case, the licensee is criminally liable for their nonobservance. The defendant was found by the county commissioners "qualified," and a license was issued to him upon the personal trust that he would conduct the business according to the regulations. The sale here made to a minor was a violation of that trust, and a violation of law. It is no defense that the defendant had no intention to violate the law. "Good intentions" are said by the proverb to be the pavement of another place, but they are not a sound one for a barroom. The law has been violated. It looks to the man it entrusted with the management of this business, and holds him liable. It is immaterial whether his liability is based upon his negligence in permitting the sale, or upon the principle of agency, or upon both, for the defendant is liable for a negligent sale from insufficient supervision of an agent as much as if he had ordered the sale. If the clerk, as Judge Cooley says, supra, being in possession of the keys, opened the saloon on Sunday for traffic, the licensee could not excuse himself from liability by his absence or ignorance, nor can he do so in the present case of a sale to the minor by being temporarily absent from the room. The defendant chose to seek for and assume the liabilities of the calling of a saloonkeeper that he might enjoy its profits. He cannot be allowed to enjoy its profits and assign its duties and liabilities to another.

The elaborate argument for the defendant is based on the fallacy that our statute requires a scienter to be proven. This would be so if the section was abruptly cut in two. But taken as it stands, when the State has proven an illegal sale as to a minor, the case is made out. The statute only permits the defendant to withdraw himself from liability by showing that the actual seller did not know that the purchaser was a minor. This was not done in this case. The argument (570) made for the defendant, that a merchant might, on the same grounds, be convicted of a larceny by his clerks, is not very complimentary to the defendant, and it is as little beneficial to him. If, however, the law forbade larceny, except upon a license (if it is possible to conceive of such a thing), granted after examination, and theft by all not so licensed, or even by them from minors, were indictable, and the clerks, without being themselves licensed, committed a theft by virtue of the defendant's license, from a minor, then only would the case be analogous.

The evidence is uncontradicted that the sale was to an unmarried person who was a minor. No exception was made as to the charge in regard to the purchaser being unmarried, and hence we cannot pass upon a point not raised, and about which, indeed, there was no controversy. Neither the whole of the charge nor of the evidence is stated to have been sent up, only so much as is necessary to present the exceptions made.

The fact that the clerks were acquitted because it could not be determined which one sold to the minor is a strong argument against the defendant. If the principal were not liable for all illegal sales made under his license, he could, by having several clerks, or changing them often, easily evade punishment for illegal sales. The law looks to the responsible party — the licensee — who has been permitted to carry on the calling, and who is held for its proper exercise. He is to receive the money from the illegal sales, and he can always be identified.

The amount of supervision exercised by the defendant here is a matter in mitigation to be considered by the court in passing judgment. It was not enough to prevent the illegal sale, and hence is not a defense.

No error.