Opinion
11-05-1909
STATE v. FAGAN.
Josiah O. Wolcott, Deputy Atty. Gen., for the State. William F. Kurtz, for defendant.
John Fagan was indicted for selling intoxicants without a license. Verdict of guilty.
Argued before WOOLLEY and HASTINGS, JJ.
Josiah O. Wolcott, Deputy Atty. Gen., for the State.
William F. Kurtz, for defendant.
The indictment was as follows: "New Castle County—ss. September Term, 1909.
"The grand inquest for the state of Delaware, and the body of New Castle County, on their oath and affirmation, respectively, do present that John Fagan, late of New Castle hundred, in the county aforesaid, on the first day of July in the year of our Lord one thousand nine hundred and nine, with force and arms, at New Castle hundred, in the county aforesaid, in a certain house there situate, to wit, in a certain house, New Castle, in school district number forty-five, in the hundred aforesaid, and in which said house the business of selling intoxicating liquors was then and there carried on, he the said John Fagan, then and there being the tenant and occupant of said house, he, the said John Fagan, then and there having aproper license to sell intoxicating liquors according to law only in quantities less than one quart to be drunk on said premises, did then and there unlawfully sell intoxicating liquor, to wit, whisky, to one Edward H. Williams in a quantity less than one quart to be drunk off said premises, against the form of the act of the General Assembly in such case made and provided, and against the peace and dignity of the state.
"Andrew C. Gray,
"Attorney General,
"By Josiah O. Wolcott,
"Depy. Atty. General."
WOOLLEY, J. We hold that the case of State v. Polk, 6 Pennewill, 456, 69 Atl. 1006, governs this case. Therefore the application to quash the indictment is refused.
At the trial, John L. Wright, deputy clerk of the peace, was produced as a witness on behalf of the state and identified the license, under which the defendant was selling liquor in quantities of less than one quart to be drunk on the premises, as having been issued to the defendant.
Mr. Kurtz, on cross-examination, handed two papers, which were licenses, to the witness, and proved by him that the same were issued to John Fagan by the clerk of the peace for New Castle county. The papers were marked for identification "A" and "B." The Deputy Attorney General then questioned the witness as follows:
"Q. I hand you this paper, marked 'A,' for Identification, and ask you if that license was issued by the clerk of the peace? A. It was. Q. When?"
Objected to by Mr. Kurtz, on the ground that, as the paper had not been offered in evidence, but had simply been marked for identification, it could not be now inquired into by the Deputy Attorney General, but that such inquiry could be made while it was offered in evidence.
The Deputy Attorney General contended that it was new matter brought out on cross-examination, and that he could inquire as to the same in redirect examination.
WOOLLEY, J. The objection is sustained. You will have the same opportunity later that you would hava. had now, if we had ruled the other way.
The state proved the sale of a half pint of whisky contained in a sealed bottle to one Edward H. Williams by the bartender of the defendant at the latter's place of business at New Castle on the date laid in the indictment. The said whisky was carried away from the premises in the original package without being opened, and was identified by another witness as being the whisky delivered to htm by said Williams on the day of the alleged sale. The state then rested.
Mr. Kurtz, for the defendant, moved that the court instruct the jury to find the defendant not guilty, for the following reasons, as well as others: That there was no evidence to show that the defendant knew of, or acquiesced in, or was benefited by, or connected with, the alleged sale of whisky as charged in the indictment.
The Deputy Attorney General replied, citlug State v. Burchinal, 2 Har. 528.
WOOLLEY, J. The court have given very deliberate consideration to the motion to charge the jury to bring in a verdict of not guilty. For reasons which may appear later, we deny the motion. You may proceed with the case.
George McGrory, the bartender of the defendant, was produced as a witness on behalf of the defendant, and was asked by Mr. Kurtz the following question: "Q. With relation to your employment, what, if anything, did Mr. Fagan tell you about the conduct of his saloon?"
Objected to by Mr. Wolcott, Deputy Attorney General, as immaterial, citing Noecker v. People of State of Illinois, 91 Ill. 494; State v. McConnell, 90 Iowa, 197, 57 N. W. 707; State v. Stewart, 31 Me. 515; Carroll v. State, 63 Md. 551, 3 Atl. 29; State v. Caldwell, 1 Marvel, 155, 41 Atl. 198; People v. Longwell, 120 Mich. 311, 79 N. W. 484.
Mr. Kurtz cited in support of the admissibility the following authorities: 1 Bishop's New Criminal Law, § 219; State v. Hayes, 67 Iowa, 27, 24 N. W. 575; Commonwealth v. Nichols, 10 Mete. (Mass.) 259, 43 Am. Dec. 432.
THE COURT reserved its decision until the following morning, when the following opinion was delivered:
WOOLLEY, J. The materiality of the question propounded, and objected to as immaterial, depends upon the rule of law to be applied in this case, involving the criminal liability of a principal licensee for the unlawful acts of his agent or servant. The criminal liability of the principal licensee for the unlawful acts of his agent or servant depends upon the nature of the offense and the relation of the principal to his agent or servant. When the offense is one in violation of the law respecting the license under which the licensee is acting, it has been held, and it is the law of this state, as ruled in the case of State v. Peo, 1 Pennewill, 525, 42 Atl. 622, that the licensee as principal or master is criminally liable for the unlawful acts of his agent or servant. This is because a license to profit by the partial monopoly to sell liquors carries with it a full responsibility on the part of the licensee to sell liquors in the manner contemplated by his license as provided by law, and also carries with it a full liability on the part of the licensee to the penalties of the law when the license and the law relating to it are in any way violated, either by himself or by his agent. The case at bar is distinguished from the case of State v. Peo, and from other cases where the holder of a license is indicted for violating the provisions of section 14, p. 396, c. 418, vol. 14, Laws of Delaware, such as the saleof liquor to minors, to insane persons, to habitual drunkards, or the sale of liquor upon the Lord's Day or upon election day, in that the defendant is here indicted, not for selling liquor in violation of a license, but for selling liquor without a license, 'within the sense and meaning of the law recently laid down in the case of State v. Mundy, 74 Atl. 377.
The case at bar, like the case of State v. Mundy, 74 Atl. 377, is distinguished from the ordinary case where the defendant is charged with the offense of selling liquor without a license, in that the defendant, though charged with selling liquor without a license, was in fact a licensee having authority to sell liquor in a certain place, in a certain manner, and in certain quantities. In other words, he was licensed to sell liquor in the place and manner prescribed in quantities less than one quart to be drunk on the premises, and he is indicted for the specific offense of selling liquors in quantities less than one quart to be drunk off the premises, or in other words, for selling liquor without a license. It appears that, in the conduct of his business under the license granted him to sell liquor to be drunk on the premises, the defendant employed a bartender, who it is alleged, while acting in such capacity, sold liquor to be drunk off the premises. By the question asked the witness it is apparent that the defendant seeks to show that the unlawful act of the bartender was without authority, or in violation of the instructions of the defendant; and the state objects to the question on this ground: That the answer would not relieve the defendant from criminal liability for his bartender's unlawful act, as the principal is liable for the act of his agent or servant, whether he expressly or impliedly authorized it or not.
After a full and careful examination of all the authorities cited by the Attorney General, we found but one that applies to the criminal liability of a master for his servant's act of selling liquor without a license; the remaining cases being in support of the rule laid down in the case of State v. Peo, with respect to the violation of a license granted, which has been distinguished from this case. By an examination of the authorities cited by the counsel for the defendant, we find several lines of cases attaching to the defendant differing grades of liability for his servant's acts, according as statutes regulating the sale of liquor are strict or liberal. Applying the principles of law as we find them to this language and the spirit of our statute, we hold that as the defendant was the recipient of a license from the state giving him the authority and the privilege to sell liquor in a certain manner, and as he saw proper to conduct his business under that license by the agency of a bartender, the defendant as principal must be held prima facie liable for the sales of liquor made toy his agent in a manner different from that authorized by his license, and beyond and without authority of a license.
We further hold that, as the defendant is not charged with a violation of his license in the sense of the rule laid down in the case of State v. Peo, he may avoid this prima facie liability by producing evidence in rebuttal that the act of his bartender was without his authority or kuowledge and against his instructions. When a principal is charged with selling liquor by an agent or servant, not in violation of a license, but without a license, and a conviction is sought, it must appear expressly, or by implication such as that indicated in this case, that he gave authority to or had knowledge of his agent's acts, just as in any other case where criminal responsibility is sought to be attached to a principal for the wrongdoing of his agent. State v. Peo, 1 Pennewill, 525, 42 Atl. 622; Bishop's New Criminal Law, § 219; Commonwealth v. Nichols, 10 Mete. (Mass.) 259, 43 Am. Dec. 432; In re Berger, 84 Neb. 128, 120 N. W. 960.
Mr. Kurtz, counsel for defendant, thereupon offered in evidence the license which had been identified by the deputy clerk of the peace, and marked "A" for identification. This was objected to by the Deputy Attorney General as immaterial, and he argued that upon the face of the license there were two dates, one of January 30, 1909, toeing the test date, and the other a stamp date of July 24, 1909; that, if it should appear that the license was not issued until July 24, 1909, it would not be admissible, and the state is entitled to have such explanation made before it is admitted in evidence.
WOOLLEY, J. We rule that this paper is admitted in evidence at this stage, subject to such disposition of it as we may think advisable after hearing further testimony that may be offered in the case.
Mr. Wolcott. That is to say, it is admitted, subject to be stricken out on further proof.
WOOLLEY, J. Subject to be stricken out, if the court should so direct.
HASTINGS, J. But not to be read to the jury at this time.
When the defendant rested, the state recalled John L. Wright, deputy clerk of the peace, who testified as follows:
By Mr. Wolcott: "R. Q. I hand you Defendant's Exhibit A (being the alleged license issued to the defendant, authorizing the sale of intoxicating liquors in quantities less than one quart to be drunk off the premises) bearing the test date of January 30, 1909, and will ask you what the stamped date 'July 24, 1909,' means or signifies? (Objected to by Mr. Kurtz as an attempt to vary a written paper by parol evidence, stating that the word and figures referred to were part of the license, and there was no ambiguity about the same that called for any explanation. Question withdrawn temporarily.) X. I willask you whether those words and figures I have mentioned were on there when it was issued by the clerk of the peace's office? A. Yes, sir; they were. X. Now I will ask you what they mean or signify? (Objected to by Mr. Kurtz on the same ground as before stated.)"
WOOLLEY, J. The court anticipated this question, and gave it as much and as serious consideration as it could within the time between the adjournment of court yesterday and the convening of court this morning. The rule of law which directs the admission of records and instruments under the official seal of such an officer as the Secretary of State contemplates such records and instruments as upon their face appear to be regularly and properly signed and sealed. This instrument contains upon its face two things which at least do not explain or speak for themselves. One is the signature of William T. Smithers as Secretary of State, made as of January 30, 1909, and the other is a stamped date—"July 24, 1909." As the whole of this instrument had been tendered and admitted in evidence, it is proper to hear testimony to ascertain whether there is in fact any irregularity, and "to explain the meaning of the stamped date, which does not explain itself, so that the proper evidentiary value of the exhibit may be ascertained and given to the jury, and to avoid giving to it a value which in fact or in law it might not have. By obtaining a license after the date upon which he is charged with selling liquor without a license, and having a test date prior to that upon which he is charged with the unlawful sale, the defendant cannot use such a license as evidence in his defense. It is therefore proper to show the date upon which the special license was in fact Issued, as distinguished from the date of its test, so that the jury may be informed as to whether the act for which the defendant is indicted was committed with or without the authority and protection of the special license.
"X. I will ask you whether Defendant's Exhibit A was had by John Fagan, this defendant, on July 1st or 2d of this past year? (Objected to by Mr. Kurtz. Objection overruled.) A. It was not. X. Are you speaking from the record? A. Yes, sir. X. Do you base that statement on the record of the clerk of the peace's office of this county? A. Yes, sir; on the record.
"Mr. Wolcott: This license, Defendant's Exhibit A, was admitted subject to objection and subject to a motion to strike out. I now move that Defendant's Exhibit A be stricken out as evidence in this case. (Objected to by Air. Kurtz, counsel for defendant.)"
WOOLLEY, J. Let Defendant's Exhibit A be stricken as evidence in this case. The decision of the court does not go to the validity of the license, but to the day it was issued. We deal with it solely as evidence in this case.
WOOLLEY, J. (charging the jury). The court declines to accede to the prayer of the defendant's counsel to give you binding instructions, and therefore will proceed to charge you as to the bearing of the law upon the evidence heard from the witness stand. John Fagan, the defendant in this case, has been indicted for selling, on the 1st day of July, 1909, in a certain school district in this county, whisky to one Edward H. Williams, in a quantity less than one quart to be drunk off the premises. It is provided by statute that "no person by himself, his agents or servants, directly or indirectly, shall sell any intoxicating liquor." Upon that much of the law is founded all the law that follows with respect to the selling of liquor. Then the statute proceeds and says, "except as herein provided."
There are a multitude of ways of selling liquor which are in violation of law. The courts of this state have distinguished between the sale of liquor in violation of the law which applies to the license granted and the violation of the law which applies to the sale of liquor without a license; and it is because of that distinction, and the fact that in this case the defendant is charged with selling liquor without a license, while in fact he had a license of a certain kind, and that it has developed that the liquor, when sold, was dispensed through an agent, instead of through the principal, that some confusion may possibly have arisen between the testimony as stated by the witnesses and the law as announced by the court during this trial. If there be confusion, it is because of the dual character of the testimony, viz., the sale of liquor without a license, when the defendant had a license, and the sale of liquor by an agent, when the principal was the licensee. The court will briefly and simply state to you the law.
In the first place, the law provides that a man may be licensed by the power of the court to sell liquor in quantities less than a quart to be drunk on the premises. That is the ordinary saloon license, as the ordinary man understands it. Then there is another law which provides that a man, having that kind of a license from the court, may apply to the clerk of the peace and get another kind of a license, without the approval of the court, which will give him the privilege of selling liquor in quantities less than one quart to be drunk off the premises. A man may have both licenses. Then he is protected in selling liquor in quantities of less than a quart to be drunk both on and off the premises. If he has a license to sell liquor in such quantities to be drunk on the premises, and has no license to sell liquor in such quantities to be drunk off the premises, and he does sell liquor to be drunk off the premises, then, under the law, he is selling liquor without a license.
In respect to the usual kind of a license which the court grants, with which you aremost familiar, the law lays down many inhibitions, viz.: That the licensee shall not sell liquor to minors; that he shall not sell to insane persons; that he shall not sell to habitual drunkards; that he shall not sell on the Lord's Day, or on election day. That law applies to a licensee who has received a license from the court. Ordinarily there would be no distinction between a man who sells liquor without a license, having no license of any kind, and a man who sells liquor in a certain way without a license, having a license of a certain kind. And this is where our difficulty has come in; and we say to you that a man having a license which is given him by the approval of the court, who violates the law with respect to selling liquor without a particular kind of a license, such as a license for the sale of liquor in quantities less than a quart to be drunk off the premises, is guilty of violating the law against selling liquor without any license. But when the law gives to him the privilege of administering the business of selling liquor in certain quantities, it gives to him a certain benefit, a certain privilege, or a certain right, which under the general inhibition of the statute is withheld from other people, and therefore it places upon him a certain responsibility and a certain corresponding liability.
The court has ruled in this case, and so charges you now, that, when a person having a license sells liquor without and beyond the authority of another kind of a license, he sells it just as if he did not have the first license granted him by the court. If he thus sells liquor through an agent, such as a bartender or one employed by him in the conduct of his business, the law presumes that the act of the agent is the act of the principal, and the principal—namely, the licensee— is prima facie guilty of the sale of liquor without a license. In other words, if the state shows to you that the agent sold the liquor without authority of the licensee, without showing at all that the principal knew of or authorized the sale of the liquor, the state has prima facie proven its case.
But it is the right of the defendant to rebut that prima facie case set up by the state, and show as a matter of fact that the agent, or bartender, did not have the authority of the master or the licensee to sell liquor without a license; and he may show, if he choose and if he can, that the act of the agent was without his knowledge and against his express instructions. But the burden is upon the defendant to do that, because all the state has to do is to show a prima facie case, and when that is done the burden of satisfying you that the act of the agent was an act without the authority of, or knowledge of, or against the instructions of, the principal, rests upon the defendant.
The court says to you that in this case there is no evidence that the defendant has a license of a special character which would authorize him to sell liquor in the way he is charged to have sold it and which would protect him in that sale, as the evidence tendered upon that point by the defendant has been rejected and ruled out by the court.
There is one charge which the court always gives the jury, and that is that the prisoner is presumed to be innocent until be is proven guilty, and that proof must be beyond a reasonable doubt, by which is meant not a mere fanciful, speculative, or indefinable doubt, but such a doubt as reasonable men would have under all the facts and circumstances of the case.
It is for you to determine whether or not the bartender was in this case the agent or servant of John Fagan, the principal or the defendant. It is likewise for you to determine, after satisfying yourselves as to the agency of the bartender, whether or not the state has made a prima facie case of the character here indicated to you; and if it has and there is no explanation made by the defendant, your verdict should be guilty. The next thing you are to determine is whether or not the defendant has convinced you satisfactorily that the act of the agent—that is, the bartender—was without the defendant's knowledge or consent, or against his instructions and authority, or, in other words, has the defendant satisfactorily to your minds overcome the prima facie case such as is presumed in favor of the state under the ruling before indicated to you. If he has, your verdict should be not guilty.
Verdict, guilty.