State v. Haines , 35 N.H. 207 ( 1857 )

EeRLEy, C. J.

The ground taken for the defendant is, that, being a married woman, and acting in the sale of the liquor as agent for her husband, she is not liable under the statute, because in such case it would be the sale of the husband, and not a sale by her, within the meaning of the statute, which punishes the sale as a crime. But we think this position cannot be maintained.

Here is no question upon the contract of sale. It is the act of selling that causes the mischief against which the statute is aimed, and which the statute punishes as a crime. The act of the wife, in presence of the husband, the law in certain cases supposes to be done by his coercion, and on that account the wife in such cases is not punished for an act which would otherwise be criminal; but no question of that kind arises here, and as a general rule the wife is liable for criminal acts, notwithstanding her coverture. There is, therefore, nothing in the fact that the wife acted as agent for tbe husband to distinguish her case from any ordinary sale by an agent under general instructions from his principal.

Every sale by an agent, regarded as a contract, is the sale of the principal and not of the agent; but to hold that an agent who sells liquors without license, by general instructions from his principal, is not liable under the statute as the seller, would go far to defeat the object of the law. The criminal act might be committed, and the mischief accomplished by the agent in this State, while the principal resided in another jurisdiction, quite beyond the reach of punishment. The act of selling, we think, constitutes the statutory offence. It is made a crime to sell without license, and whoever actually makes the sale, though acting as agent for another, is guilty of the offence. The principal may also be liable, but this will not excuse the agent.

The case of Rex v. Crofts, 2 Strange 1120, is an authority for this construction of the statute. That was a prosecution for selling gin contrary to the statute. After conviction it was objected that it appeared the defendant was a married woman, and could not therefore make a contract, and the sale must be regarded as the husband’s ; but that objection was overruled.

Judgment on the verdict.