Commonwealth v. Johnston

Opinion by

Willard, J.,

From a careful examination of the testimony in this case it is apparent that the sins of omission and commission on the part of this appellant were perhaps quite sufficient to have convicted him of the offense charged in the indictment. The commonwealth however was not satisfied to rest the case on the evidence of the appellant’s own transgressions, but sought to visit upon him the sins of his clerks and hold him criminally responsible for illegal sales of liquor made by them in direct violation of his specific orders. The appellant’s counsel offered to prove by the appellant’s testimony that he was the owner and proprietor of the drug store in question; that he had a registered pharmacist and an assistant in charge of said store; that he instructed them particularly in regard to the manner in which he desired them to conduct his business; that he instructed them not to sell any intoxicating liquors to any one except upon a prescription of a regularly registered physician and for medicinal purposes, and not to sell to any one except on such prescription. And further, they should not sell more than once on any one prescription; and further, that if any sales of liquors of any kind were made in contravention of these orders and instructions, they were made in his absence, against his authority and without his knowledge. This offer was refused and the testimony excluded by the court. On the same question the appellant asked the court to charge the jury that “ If the employees or salesmen of the defendant sold vinous, spirituous, malt or brewed liquors in violation of the law, contrary to defendant’s instructions, in violation thereof and without his knowledge, he is not liable for such violation of law and cannot be convicted thereof.” The court answered the point, “We refuse that and say it is not the law.”

This raises the question squarely whether a man can be convicted of a crime perpetrated by his agent in doing an illegal act which he had been specifically ordered not to do by his principal.

While we are satisfied that there was sufficient evidence to convict the appellant, he was entitled to a fair trial by a jury of his peers under proper instructions from the court. He was charged with the commission of an offense against the laws of the commonwealth, and while it is our duty and pleasure to uphold and enforce the statute under which he was indicted, we cannot sanction by our judgment the rule adopted by the trial judge in excluding the appellant’s offer and his instructions to the jury that it was immaterial whether the liquor was sold by the appellant himself or by his agent, though contrary to his express orders and instructions. The argument that if the rule were otherwise than as declared by the trial judge the door would be thrown open for the violation of the law by reason of orders from principal to agent not given in good faith, but as devices for the sole purpose of evasion, cannot be entertained.

We are to presume men innocent until proved guilty, we are to presume that there are honest men engaged in the sale of intoxicating liquors, and that there are honest druggists engaged in legitimate business entitled to sell liquors for medicinal purposes on a proper prescription from a proper and authorized physician, and that they have a right to employ agents to assist them and to prescribe rules in good faith for the government of such agents and to prescribe a line of conduct within the scope of their employment, and to prohibit any unlawful act not authorized by their employer.

Every lawful instruction from principal to agent is to be considered as given in good faith until the contrary is shown and then the bona tides of the instruction is for the jury. Under no other rule can the rights of honest men be preserved, and they are entitled to invoke this rule notwithstanding the fact that some dishonest men may perchance escape just punishment under its shield.

This is not a case involving civil liability, where the principal may be held in damages for the fault and misdoing of his agent with which he had no further connection than that which arises from the fact that the injury was occasioned by an employee in his service; the civil liability of the principal exists, even though he prohibited the sale, on the ground of the civil liability of the master or principal for the torts of the servant.

Ordinarily the principal is not held criminally responsible for the acts of his servant or agent unless he in some way participates in, countenances or approves the criminal act of the agent, nor can a principal be held criminally liable for the act of his agent in opposition to his will and against his orders. Where the statute authorizes the wife to recover damages against a landlord for sales to her husband after notice not to sell to him, the rule in civil actions applies, and the defense that the liquors were sold by a barkeeper contrary to the orders of the landlord, will not prevail.

We are to consider this case in its true light. This appellant was indicted for a crime. The rules of evidence and the rules of law applicable to criminal cases must be applied to and enforced in this case.

The appellant was indicted and tried in the court below under the 15th section of the act of May 13,1887, which is as follows ; “Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors or any admixture thereof without a license, shall be sentenced to pay a fine of not less than five hundred dollars nor more than five thousand dollars, and undergo an imprisonment in the county jail of not less than three months nor more than twelve months.” That part of the 16th section pertinent to this case is here inserted, “Druggists and apothecaries shall not be required to obtain a license under the provisions of this act, but they shall not sell intoxicating liquors, except upon a written prescription of a regularly registered physician; alcohol, however, or any preparations containing the same, may be sold for scientific, mechanical or medicinal purposes. Anyone violating the provisions of this act shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to the same penalties as are provided in the 15th section of this act: Provided that no spirituous, vinous, malt or brewed liquors shall be sold or furnished to any person more than once on any one prescription of a physician.”

The above quotations from the statute are inserted as they have a material bearing upon the question under consideration.

While it was stated by the learned trial judge in his charge to the jury and by the learned counsel for the appellee in his argument that the precise question here involved had not been decided by our Supreme Court, as authority sustaining the court below we were referred to Carlson’s License, 127 Pa. 330; Commonwealth v. Sellers, 130 Pa. 32; Commonwealth v. Holstine, 132 Pa. 357; Commonwealth v. Zelt, 138 Pa. 615.

The first of these cases was an appeal from the order of the court of quarter sessions of Erie county revoking the respondent’s license. At the hearing on the rule to show cause Carlson, the respondent, admitted that he sold beer to minors and gave as his excuse that he did not know that the persons to whom he sold were under age.

In Commonwealth v. Sellers, the defendant was indicted for selling to minors. The court below overruled the motion to quash the indictment, the reason assigned for quashing being that it was not therein averred that the liquor was knowingly and wilfully furnished by the defendant. The court also refused to declare the act of May 18, 1887, unconstitutional. The Supreme Court affirmed the court below.

In Commonwealth v. Holstine, the defendant was the driver of a beer wagon in the employ of one Otto who had a license for the sale of beer in the county of Philadelphia, and there had his place of business. Holstine sold beer in Montgomery county without a license. It was held that he was properly convicted.

In Commonwealth v. Zelt, the defendant was convicted of selling liquor to a man of known intemperate habits. It was held that he was properly convicted, and whether he had knowledge or not the sale was illegal and made at the peril of the defendant under the law.

We conclude from a careful consideration of these cases that they do not sustain the rulings and instructions of the trial judge. It will be observed that the defendants in the above cases were the licensees themselves, charged with the execution of the conditions contained in their warrants from the courts of quarter sessions under the laws of the commonwealth, but does the law require the proprietor of a hotel to perform the physical impossibility of standing behind his bar at all hours and at all times ? Must a druggist stand at his cormter without intermission? Does the law deprive these people of the ordinary privileges of life? May they not employ assistants in and about their business as other business men do ? There can be but one rational answer to these questions; they have the right to employ agents to assist them, and while the cases referred to do hold them answerable for sales made by themselves and prevent them from pleading ignorance of the knowledge of the nonage or intemperate habits of the persons to whom they sell, they do not decide that they may not employ agents nor do they hold them criminally liable for illegal sales made by such agents contrary to the express instructions given in good faith by their employers. Upon this question we cite the very pertinent case of Commonwealth v. Stevens, 153 Mass. 422. The facts were, the defendant was a druggist and was authorized by his license to sell intoxicating liquors for certain purposes, but not to minors. One of his clerks made a sale to a minor, and the principal question at the trial was whether the defendant was criminally liable therefor. There was evidence that he had instructed all of his clerks not to make sales to minors, nor indeed to any person under twenty-five years of age. The learned judge, before whom the case was tried, instructed the jury that if they were satisfied that these instructions were given by the defendant but that the clerks were to determine the question of minority simply from the appearance of the customer, and that the defendant authorized and permitted them to sell without further inquiry if they believed such person to be twenty-five years of age or upwards, and that the clerk who made the sale in this case applied this test and in good faith sold to this customer, then the defendant would be liable, even if he had no personal knowledge of this sale, because the servant in such case was carrying on the defendant’s business in the way lie was instructed, and obeyed Iris instructions, and that under such circumstances the act of the servant would be the act of the master. In reversing the judgment Mr. Justice Allen in delivering the opinion of the Supreme Court of Massachusetts said, “ The servant himself is no doubt responsible, because he made a sale, however innocently, which the law forbade him to make; but if he reasonably and honestly believed the purchaser to be of adult age and that the sale might lawfully be made, his statutory guilt should not be imputed to the defendant. Though the defendant would have been responsible for his own mistake if the sale to the minor had been made by him, it seems to us to be carrying the doctrine of criminal responsibility for the acts of another quite too far to convict him by reason of an honest mistake on the part of his clerk, provided the jury should find that the master sincerely and honestly intended that his instructions should be followed in good faith.” In that case the court also held that “ an employer is not criminally responsible for the illegal sale of intoxicating liquors to a minor by an employee, if the employer’s instructions, given in good faith not to make such sale permit the employees to determine the question of minority from a customer’s appearance simply, and the sale is made under an honest or mistaken belief that the minor is an adult.”

Commonwealth v. Wachendorf, 141 Mass. 270, was an indictment charging that the defendant unlawfully sold intoxicating liquor between the hours of 11 at night and 6 in the morning contrary to the statute of Massachusetts. At the trial it appeared that the defendant kept a restaurant and saloon, and that he had a license, one of the conditions of which was that no sale of spirituous or intoxicating liquors should be made therein between the hours of 11 at night and 6 in the morning. There was evidence tending to show a sale by one of the defendant’s waiters after 11 o’clock at night on the day named. The defendant introduced evidence to show that he had given strict orders to close the sale of intoxicating liquors at 11 o’clock at night, and asked the court to rule “ that if one of his employees willfully, or in violation of his instructions had sold a bottle of ale on that night after 11 o’clock, such a sale would not make the defendant liable under this law.” The court refused this instruction and instructed the jury that the license -was violated if any sale was made after 11 o’clock, though by a servant in violation of the instructions of the defendant. Chief Justice Morton in reversing the court below says “ Section I. upon which the complaint in the case at bar is based, subjects to punishment any person who sells liquor unlawfully. It is to be presumed that the legislature intended to use the language in its natural sense, and with the meaning given to equivalent language by the court in Commonwealth v. Nichols, 10 Metcalf, 259. It is not a necessary or reasonable construction to hold that it subjects to punishment a person who does not sell, because a servant in his employment in opposition to his will and against his orders makes an unlawful sale. We are therefore of the opinion that the instructions requested by the defendant should have been given. Of course it would be for the jury under the instruction to determine whether the defendant did, in good faith, give instructions, intended to be obeyed and enforced, that no sale should be made after 11 o’clock. If he did and the sale was made in violation of them without his knowledge he cannot be held guilty of the offense charged in the complaint.” To the same effect is Commonwealth v. Nichols, 10 Met. 259; Commonwealth v. Putman, 4 Gray, 16.

The statute of Ohio declares that it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors in the cases specified in the act.

In Anderson v. State, 22 Ohio, 305, on an indictment for unlawfully selling intoxicating liquor to a minor in violation of the statute the defendant asked the court to charge that if Ingersoll, Anderson’s agent, made said sale in violation of the instructions of his principal and contrary to his known wishes, the defendant would not be liable for said sale; but the court refused to so instruct the jury and charged “ That if Ingersoll was employed as agent for defendant to sell intoxicating liquors according to law, and in the course of said employment, did make the sale charged in the indictment, the defendant was liable therefor, though said sale was made in violation of his express and positive instructions.” White, Justice, in delivering the opinion of the Supreme Court of Ohio reversing the judgment of the court below says: “ In giving construction to the statute, the court below applied the rule in civil cases which holds the principal as to third persons liable for the acts of his agent done within the general scope of his authority, irrespective of actual instructions that were unknown to the person dealing with the agent. In such case as between the principal and a third party dealing with the agent on the faith of his apparent authority, the law conclusively presumes the actual authority of the agent to be what it openly appears to be; while as between the principal and agent the extent of the actual authority may be shown .... Strictly speaking the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offenses are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that a person actually in no way participated in the commission of a criminal act, he ought not by construction to be made punishable for it.” To the same effect is La-thrope v. The State, 51 Ind. 192; O’Leary v. State, 44 Ind. 91; Commonwealth v. Nichols, 10 Denio, 259.

In Barnes v. State, 19 Conn. 397, on an indictment for selling spirituous liquor to a common drunkard contrary to the statute of Connecticut, the defendant offered to prove in the court below that he had given his clerk specific instructions to sell no liquors to persons addicted to habits of intoxication, nor to any common drunkard: the evidence so offered as conducing to prove that his clerk in making such sale did not act as his agent.

The court below excluded the evidence. Held by the Supreme Court on appeal that this was error. Mr. Justice Ells-worth, in delivering the opinion of the court, used the following language: “We are aware, as already intimated, the master is sometimes made responsible civilly for Iris servant’s misconduct. This responsibility may grow out of an express or implied undertaking that the thing to be done should be well done, or out of that great principle of vigilance imposed upon the master that he. must see his business is conducted so as not to injure others, and that his servants shall be duly attentive and prudent. But the master is never liable criminally for the acts of his servant done without his consent and against Ms express orders.” TMs case was tried in the court below and a verdict rendered December 13, 1895. On the 18th day of July of the same year Mr. Justice Dean delivered the opinion of the Supreme Court in Commonwealth v. Junkin et al., 170 Pa. 197, which we think decisive of the principal question of this case. Junkin and his partner Sponsler being private bankers were indicted under the act of May 9, 1889, for receiving a deposit with the knowdedge that their banking institution was insolvent at the time the deposit was received at the bank. The act is as follows: “That any banker, broker or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor, with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement and shall be punished by a fine in double the amount so received, and imprisonment from one to three years m the penitentiary.” On the trial it was undisputed that both defendants knew the bank was insolvent so that the question of knowledge of Msolvency did not enter into the point decided, and for the purpose of this case the statute may be read as if the words “with the knowledge that he, they or the bank is at the time insolvent ” were omitted. The evidence was that the insolvent condition of the bank was fully known to defendants on the 23d of March, and this was not disputed; on the 24th of March, Willis, the cashier, was ordered by Junkin, one of the defendants;, (who was sick and unable to leave his house at the time), not to receive further deposits in the bank.. Willis replied that he could not open the bank without taking deposits, to which Junkin replied, “ If you persist in opening the bank against my order, then take care of yourself, and if you receive deposits then make special deposits of them, put each up by itself and., put it by itself, and return it to.the depositor.” Willis was the. cashier in charge of the bank. It appeared that after the - orders were given a deposit was .received which was not put by itself as a special deposit but was returned the next clay to the depositor. Under this testimony the trial judge was requested by defendants to charge the jury as follows:: “ If the jury believe from the evidence that Willis was ordered not to take deposits on the ■24th of March, 1894, the day the money of Rice was taken, and if the money was taken it must be returned, the verdict must be ‘not guilty.’” Answer of the court: “This point is denied. We do not think the question as to whether the money deposited was to be returned, or the fact that it was afterwards returned is material to the case.” On an appeal tó the Supreme Court the court decided that if Junkin had been present himself and received the deposit in a special manner as he had ordered, and returned it to the depositor the next day, he would not be guilty under the statute. Mr. Justice Dean in delivering the opinion says : “ If Junkin himself would not have been guilty, had he, under such circumstances, specially received the money, he would not be answerable criminally if he instructed his agent to so receive it. Whatever may be the answerability of the principal for the wrongful act of his agent in civil actions, he is not answerable criminally when the act is in positive disobedience of his explicit instructions. Willis was the agent in control. Bonsall was his subordinate. Whether the neglect to specially mark Rice’s deposit was willful or inadvertent on their part, the act cannot be imputed to Junkin whose orders were directly to the contrary.”

We have carefully examined this case and given it due consideration, but cannot affirm the trial judge in most of his rulings, instructions and conclusions; they are erroneous and must be corrected.

Under the authorities cited and for the reasons expressed in this opinion, all the assignments of error are sustained except the second, third, tenth, eleventh, twelfth and thirteenth. The answers to requests for charge, made the subject of error in the second and third assignments, were correct as the points were put to the court. The tenth, twelfth and thirteenth assignments are without merit. The judge corrected the error before the jury and the defendant was not harmed thereby. As to the eleventh assignment it is sufficient to say this defendant was indicted for selling without a license under the 15th section of the act. He attempted to excuse himself and defend as a druggist under the 16th section. Had he kept himself within the provisions of the latter section his defense would have been good. If he can on another trial show that he has not violated the provisions of that section he cannot be convicted as he stands indicted, otherwise he can be convicted as any other unlicensed person can for selling liquor without a license.

The judgment is reversed and a venire facias de novo awarded.