State v. McMahon , 53 Conn. 407 ( 1886 )

Granger, J.

This is a prosecution against a person •licensed to sell intoxicating liquors, for the sale and delivery of such liquors to a minor in violation of the act of 1882, which provides that “ every licensed person who shall sell or deliver intoxicating liquor to any minor,” shall be fined, &c. Session Laws of 1882, chapter 107, part 6, section 4, p. 186. And the case depends upon the construction to be given to that act.

The statute is a penal one and is to be strictly and fairly construed and not to be extended beyond cases clearly within both its letter and spirit. This rule is well settled. “ A thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.” 4 Bac. Abr., Statutes, sec. 45. “Penal statutes are always to be strictly construed for the benefit of the citizen; nothing more is to be deduced from the words than they expressly warrant, and they are not to be extended by implication.” 1 Swift’s Dig., 13; 1 Black. Com., 61. In French v. Gray, 2 Conn., 113, Hosmer, J., says: “Instances of restrictive legislation, narrowing the liberal operation of a statute, have been frequent; and criminal laws of the most comprehensive expression are not considered as including idiots or mad-men. * * * By 1 Edw. II. the breaking of a prison by a prisoner confined for felony, is made a felony; but if the prison is on fire, and in order to save his life the prisoner breaks it, this act, though directly contrary to the letter, is deemed to be no violation of the statute. Plowd. Rep., 13.”

In prosecutions under the same statute that we are now considering, for keeping open places where liquors are sold on Sunday, we have recently held, in State v. Ryan, 50 Conn., 411, that a literal keeping open of such a place for the ordinary use of the family and boarders of the keeper, was not a violation of the statute.

Applying the rule we have stated, a majority of the court are of opinion that the facts of this case do not bring it within the intent and spirit of the act, although it may come within its letter, and that there has not been a violation of the statute.

The facts show no purpose on the part of the defendant to practice any subterfuge or attempt to evade the law. Nor do they show in themselves any dishonest purpose. If any offense was committed it consisted solely in the handing of the bottle containing the liquor to the child; for, unquestionably, the sale was in law to the father, the’ child having disclosed her agency and stated the errand upon which she was sent by her father. The sale to the father was a legal sale, the defendant being a licensed vendor, unless the act of passing the bottle into the hands of the child made it illegal. It does not seem reasonable to suppose that it was the intention of the legislature to make an act, innocent as this was in itself, a crime, when no injury to the child could result; for the bottle of liquor, so long as it was not opened, was as harmless as a package of tea, or any other article that children are so frequently and so properly sent to purchase.

The intent of the provision in question in the statute was, as it seems to- us, solely to prevent a licensed vendor of liquors from selling to minors, and the other classes mentioned in the act, liquors for their own use. The mischief to be remedied was the obtaining of liquors by those classes for their own indulgence. The seller was not to furnish them liquors for this purpose by sale Dr gift or delivery. The word “ deliver,” as here used, is of the same import as the word “give.” Both these words are used in the act with apparently the same intent, or substantially the same. In the third section, in case of notice by the selectmen to the dealer, he is forbidden to “sell, exchange or give.” In section four, which states the penalty, the words “give” and “exchange” are omitted and the words “sell or deliver” only used. Webster defines the word “ deliver ”—“ to give or transfer.” In this case it seems clear that the words “ sell or deliver ” mean simply that the dealer shall transfer the liquor to the interdicted persons by sale or gift.

“ A statute ought to be so construed that no man who is innocent can be punished or endangered.” 4 Bac. Abr., Statutes. “No statute should be construed in such manner as to be inconvenient or against reason.” Carthew, 136; 1 Inst., 97.

A recent decision of the Supreme Court of Massachusetts, in a case almost identical with the present one, both as to the statute construed and as to the facts, sustains the view we have taken. Commonwealth v. Lattinville, 120 Mass., 385.

There is error in the ruling of the Superior Court and a new trial is ordered.

In this opinion Park, C. J., and Pardee, J., concurred. Loomis, J., dissented. Carpenter, J., having tried the case in the court below, did not sit.