State v. Bugbee , 22 Vt. 32 ( 1849 )

The opinion of the court was delivered by

Bennett, J.

Two questions are raised in this case. It is claimed, that if the respondent, in making the sale, acted gratuitously, as the mere servant of Hunt, he would not be personally liable to indictment, though Hunt had no license. But we think this is not sound. If the respondent justify the act of selling under Hunt, as his principal, he must show an authority in his principal to sell. The agent, who does the act, can stand in no better situation than his principal.' He justifies under him ; and if the principal had no authority to sell, the agent could have none.

It was immaterial, whether the agent had a compensation for his services, or not. He none the less made the sale for his principal, though he performed the acts of his agency gratuitously. Hunt having had no license to sell, the respondent must stand as principal, so far as appertains to this prosecution.

The court were called upon to charge the jury, that a single act of selling without license did not constitute an offence, under the statute of 1846. But we think it did. The language is in substance the same, as in the statute of 1839; and that statute has received a judicial construction by this court. If the respondent attempted to justify under Hunt, it was for Mm to show Hunt’s authority.

The court, it is true, told the jury, that if they found the facts proved according to what they had given them in charge, it would constitute the statute offence, as charged in one or both counts. There was no evidence tending to support the second count, and the jury should have been so charged. But the conviction on the first count was right. The court will not arrest the sentence by granting a new trial, but will sentence on that count alone, upon which the conviction was properly had, though the jury returned a general verdict of guilty. This is in analogy to cases, where there has been a general verdict of guilty on several counts, when a part of them are bad. The court in such case do not arrest the sentence, but proceed to sentence on the good counts alone.

The judgment of this court is, that the respondent take nothing by his exceptions, and he is sentenced to pay a fine of ten dollars and costs.