United States v. White

42 F. 138, 1890 U.S. Dist. LEXIS 130

• Court: District Court, W.D. Michigan
• Decided: March 26, 1890
• Status: Published

Opinion

SeveRhns, J.,

(charging jury.') I instruct you, as to the liability of the defendant for the sales made by his employes, that, if the sales made by his employes were made within the scope of the authority delegated by him to them, he would be responsible for such sales; but, if they made sales without his knowledge and consent, and which were outside of and beyond the limits in which he permitted them to act, in the transaction of his business, ho would not be liable for the sales made by such employes. In other words, a party is not criminally responsible for the unauthorized acts of an agent. He is liable for the act of an agent where it is done within the scope of his employment, and within the scope of his authority. I mean the authority which may fairly be presumed from the instructions of the principal, or the course of dealing by him, with reference to such matters.

Coming to the classes of sales shown by the government, I instruct you that, if those sales of whisky were made by the defendant for the bona fide purpose of making a sale of it, compounded with other materials, as a medicine, for a legitimate purpose, he is not liable for making such sales. The law permits druggists to use whisky in compounding medicines. In the exercise of that right and privilege, he is to be bound; and his conduct is to be tested by his good faith. If ho combines whisky in good faith, with some other materials, for medicinal purposes, he is not responsible as a retail liquor dealer. If, on the other hand, he uses some other admixture or element to put with the whisky, to make it go for something else, without having regard to the medicinal character or its medicinal purpose, then he is liable as a retail liquor dealer, because the law would not permit a make-shift and sham to stand in the way. You must look to the substance of the thing itself, and its real essence and character.

Coming to the other class of sales, I will adopt the rule that the defendant had the right to use alcohol in compounding it for the purpose of making a toilet preparation. He had the light to combine alcohol with other materials for the purpose of making cologne, and he could sell it as cologne for toilet purposes. Here again, you will bear in mind that the same principle of good faith is to be applied that I have stated to you is applicable to the other side of the case. The law would not permit or tolerate for an instant any such idea as that a man, knowing that he could not sell alcohol pure and simple, should put into it something else, knowing it was to be used for mechanical purposes, with the intent of modifying its character to that extent that it would not be pure alcohol, and so sell it that way. That, also, would be a make-shift which the law7 would not justify. Rut if, confining the rule to the present case, this defendant compounded alcohol -with other materials for the purpose of making cologne, which, as a toilet article, he sold forthe purposes of such, he would not be liable. But if he mixed any other ingredients with alcohol in order to get around and avoid the provisions of the internal revenue law, and so fixed up something that could not be called “pure alcohol,” and sold it as a compound, for the purpose of evading the law, then he would be liable.

Coming to the question of the good faith of the defendant, and his intention, did he intend to combine something with alcohol for the purpose of making cologne, and selling it as cologne, or did lie intend to p.ut some other article with the alcohol and sell it, not for the purpose of cologne, and to be used as cologne, but for mechanical purposes, with its character more or less changed. Something has been said with regard to the question of intention. Intention is hot a general question of good conduct or any general question of uprightness in the transaction of a man’s business. The question is whether the defendant intended to make the sale or sales which he Is accused of making. Did he intend to make those sales under the circumstances which are prohibited by law? That is the intent we have to look after, and nothing else.

Yerdict, guilty. Motion for new trial subsequently denied.