State v. Provencher , 135 Minn. 214 ( 1916 )

Dibell, C.

The defendant was convicted of selling intoxicating liquor within a dry county. He appeals from the order denying his motion for a new trial.

1. The defendant claimed that he purchased the intoxicating liquor in good faith for one Bell, a detective, and as his agent and with money furnished by him. The court charged that though he so purchased he was guilty.

In State v. Ito, 114 Minn. 426, 131 N. W. 469, 35 L.R.A.(N.S.) 619, Ann. Cas. 1912C, 631, we held that one who in good faith as agent of another purchased intoxicating liquor for him was not criminally liable. This was a prosecution under an ordinance of Minneapolis directed against those who without a license “sell, vend, deal in, or dispose of any spirituous * * * liquors.” The reason he was not liable was that he did not sell, deal in or dispose of intoxicating liquor. He was concerned in the transaction only as agent of the buyer. In State v. Baden, 37 Minn. 212, 34 N. W. 24, the court said: “The section of the statute under which this prosecution is brought is directed against the seller, not the purchaser.” The penalties of the local option statute (Laws 1915, p. 30, c. 23, §13), are directed against “every person, company, corporation, club, association or society, directly or indirectly, either'personally or by clerk, agent or employee, who shall sell or store or have in possession for sale, or shall solicit, receive or take any orders for intoxicating liquor,” etc. By section 1 the terms “sell” and “sale” are given the meaning prescribed in G. S. 1913, § 3188 (R. L. 1905, § 1564), which is as follows: “The terms ‘sell’ and ‘sale’ shall include barters, gifts, and all means of furnishing liquor in violation or evasion of law.”

It is the general doctrine, though not quite universal, and with it the Minnesota rule is in accord, that purchasers or their actual and good-faith agents are not within the penalties of liquor statutes, and that they are not accomplices or abettors in the illegal sale. Black, Intoxicating Liquor, §§ 380, 381, 408; 2 Woolen & Thornton, Int. Liq. §§ 701, 706, 719, 730; 23 Cyc. 182; note to State v. Cullins, 53 Kan. 100, 36 Pac. 56, in 24 L.R.A. 212; note to Reed v. State, 3 Okl. Cr. 16, 103 Pac. 1070, in 24 L.R.A.(N.S.) 268; note to State v. Lynch, 81 Oh. St. 336, 90 N. E. 935, in 28 L.R.A.(N.S.) 334. If one’s connection with an illegal sale is only as agent of a purchaser, he is not a criminal for his principal is innocent. If his connection with the transaction is such that he is agent of the seller, he is liable, for his principal is a criminal, and the agent in a criminal act is not innocent. The rule that an agent acting in good faith is-not guilty of an offense obtains, though he makes the purchase in dry territory where all sales are forbidden by positive law. State v. Turner, 83 Kan. 183, 109 Pac. 983; Reynolds v. State, 52 Fla. 409, 42 South. 373; Hiers v. State, 52 Fla. 25, 41 South. 881; Bonds v. State, 130 Ala. 117, 30 South. 427; Cunningham v. State, 105 Ga. 676, 31 S. E. 585; Simpson v. Commonwealth, 151 Ky. 442, 152 S. W. 255; Lee v. Commonwealth, 143 Ky. 355, 136 S. W. 624; Lafrentz v. State, 57 Tex. Cr. 464, 125 S. W. 32, 29 L.R.A.(N.S.) 743. In Choate v. State, 47 Tex. Cr. 297, 83 S. W. 377, involving an illegal sale in local option territory, the court said “the offense is the selling of the whisky, and not the assisting in the purchase.” The list of authorities could be extended. Even in the case of a purchase by a minor through an agent, and though all sales to a minor are illegal, and though special considerations induce a strict rule of liability, the agent by the weight of authority and where the statute is the usual one, is not criminally liable. 2 Woolen & Thornton, Intoxicating Liquor, § 726; Black, Int. Liq. § 422; 23 Cyc. 196. It was likely to prevent such a result that the legislature enacted Laws 1911, p. 407, e. 290 (G. S. 1913, § 3179), section 1 of which provides that one who in behalf' of a minor purchases intoxicating liquors commits an offense.

In a few cases it has been held that the agent of a purchaser in dry territory is so much of a participant in the illegal sale that he is criminally responsible. People v. Lapham, 162 Mich. 394, 127 N. W. 366; Buchanan v. State, 4 Okl. Cr. 645, 112 Pac. 32, 36 L.R.A.(N.S.) 83. There may be other like holdings. In Mississippi a statute similar to our statute relative to purchases for minors brings the same result. Ann. Code Miss. 1892, § 1604.

The legislature enacted the local option statute with our own decisions as well as the general trend of the authorities in mind. It knew that the general policy of the liquor statutes was to make the seller criminal and not the buyer, and to make the agent of the seller liable, but not one acting in good faith for the buyer except in the case of a sale to a minor. We do not find a legislative purpose to make the result different under the local option statute. If such had been its purpose it would have evidenced it. In Wakeman v. Chambers, 69 Iowa, 169, 28 N. W. 498, 58 Am. Rep. 218, the court said: “As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms.” The legislature had in view the making of a workable and effective law. If the purchaser or his agent were liable, it might in its judgment be less effective in reaching the guilty seller. The remark of the court in State v. Baden, 37 Minn. 212, 34 N. W. 24, quoted above, was prompted by a claim of a defendant accused of unlawfully selling intoxicating liquor that the purchaser was himself guilty and therefore his uncorroborated testimony was insufficient to convict. We do not think the incorporation into the local option statute of the definition of the terms “sell” and “sale” changes the result. In State v. Ito, 114 Minn. 426, 131 N. W. 469, 35 L.R.A.(N.S.) 619, Ann. Cas. 1912C, 631, the words used, among others, were “deal in or dispose of.” The giving and the furnishing which the statute has in mind is not that which arises from a purchase by a good-faith agent for his principal and with his money. In defining “sell” and “sale” it does not make a purchase a sale nor a purchaser a seller. The vendor is still the only criminal. The local option statute after the definition as before is directed against the seller; and the purpose of the statutory definition is to bring certain acts within the condemnation of the statute, though they may not technically constitute a sale, but the acts are always the acts of a vendor and never of a purchaser.

2. While the statute is directed against the guilty seller, and not against the purchaser or his agent, the law does not countenance an evasion or subterfuge. The one making the purchase must be the agent in good faith of the other and not himself the seller or his agent. His claim of agency must not be an evasion or a subterfuge to conceal illegal traffic. Attempted evasions and subterfuges are to be anticipated. Juries are competent to deal with them and when questions of fact are involved are the constituted tribunals for such purpose. “That subterfuges are or may be resorted to in local option precincts will not authorize the conviction of a party acting as agent of the purchaser, unless, in so acting, that party is interested in such sale, or is assisting the seller, in some way, in procuring such sale.” Hood v. State, 35 Tex. Cr. 585, 34 S. W. 935.

The evidence was such as amply to justify a finding that the defendant sold the intoxicating liquor to Bell. It was sufficient to sustain a finding that the defendant did not sell to him, but that at his solicitation, and as his agent, and acting in good faith, and with money given him for the purpose, he procured the liquor for him. The defendant does not claim that the evidence is insufficient to sustain a finding that he in fact made the sale. We do not understand that the state contends — at least it cannot do so successfully — that the evidence was not such as to justify a finding that the defendant, at the solicitation of Bell and with money furnished by him and as his agent and for his use, made the purchase. There is testimony, not so improbable but that it made a question for the jury, that it was only after repeated solicitations on the part of the detective that the defendant undertook to go out and get liquor for him if he could. The contention of the state is that, conceding all this to be true, the defendant is still criminally liable within the provisions of the local option statute. This was the charge of the court. By it the court removed from the consideration of the jury the defendant’s claim of good-faith agency. He was deprived of the right to have the jury pass upon it. But for this the verdict would be sustained. Whatever are our personal views of the truth of the defendant’s defense, the validity of it involved a question of fact which a jury is the tribunal to determine. There must be a new trial.

Order reversed.