State v. Dow , 21 Vt. 484 ( 1849 )

The opinion of the court was delivered by

Poland, J.'

The respondent was indicted for dealing in the selling of spirituous liquors as a retailer, without being legally licensed .for .that purpose under .the.statute of 1846. The case shows, that in the winter of 1847-8 spirituous liquors were kept for sale, and were openly and constantly sold through the winter, at the store in Albany, under the superintendence and care of the respondent, without any license to any person so to do ; but it did not appear, that the respondent delivered or sold any with his own hand; all the acts of selling were by Howard, a clerk in the store.

1 In order to constitute one a dealer, so as to subject him to the penalty imposed by the statute of 1846, it is not necessary, that he should actually do the business in person, or even that it should be done in his presence, or by his express command. A merchant, who keeps liquors in his store for sale, and clerks to deal it out in common with other commodities kept for sale, is equally as liable for sales made by such clerks, as if made by him in person ; it is a dealing by him.

The objections in the present case arise upon the charge of the county court to the jury ; and for the purpose of a proper understanding of the charge, it is necessary to examine and ascertain what was the question really litigated before the jury, upon the trial in the county court. No question seems to have been made, but what the sale of liquors was within the knowledge of the respondent, or even in his presence; but the defence was rested upon the sole ground, that the respondent and Howard were both mere clerks, or servants, of Hayden, the reputed owner of the store and goods; and that the respondent had no control over the acts or conduct of-Howard, and could not therefore be held to be responsible for his conduct. The prosecution claimed, and attempted to prove, that though the respondent might in some sense be but a clerk, or servant, of Hayden, still that he stood in the place of Hayden, and had and exercised the same control over the business and over Howard, that Hayden himself would have done, had he been actually present, superintending the business himself. The charge given to the jury was in reference to the ground of defence set up in the case; and there was certainly no necessity, or propriety, in the county court instructing the jury upon points not made in the case by the evidence, or raised by the counsel.

Under the charge the jury must have found, that the respondent, in reference to the business done at the store in question, stood in the place of and exercised all the rights and responsibilities of Hayden, the reputed owner, and that Howard was a mere clerk under the respondent, subject to his direction and under his actual control and supervision. The jury were told, that if they found this to be the relation, in which the respondent and Howard stood to each other, these sales made by Howard would legally be the same as sales by the respondent, and that the respondent would be liable to the penalty imposed by law. We think this direction was clearly right, and it appears to have covered the only question made in the case,— and as the jury found these facts, the conviction was right. The exceptions of the respondent are therefore overruled.