Ollre v. State

Appellant was convicted for violating what is popularly known as the Baskin-McGregor liquor bill. Among other things, that Act of the Legislature inhibits the selling of intoxicants by retail liquor dealers between the hours of twelve o'clock Saturday night and five o'clock Monday morning. The first count in the indictment charges appellant with having violated this provision of that Act. The second count in the indictment charges, in a general way, that appellant was a merchant and dealer in goods, wares and merchandise, to wit, a liquor dealer, and as such liquor dealer sold his goods on Sunday, to wit: a glass of beer to one E.E. Williams.

The evidence for the State, in substance, shows that on Sunday, the 6th day of September, somewhere about two or three o'clock in the afternoon in appellant's saloon one Walter Winner sold to E.E. Williams and others beer. The theory of the State is that Winner was the agent, clerk and employe of appellant, and as such sold the beer to these parties in appellant's place of business on said Sunday evening. These witnesses swear that Winner sold them beer on the Sunday evening and for which they paid him. Appellant testifies that he closed his business house Saturday night at 12 o'clock and until 5 o'clock Monday morning, and so far as he personally knew it was not opened for business. That somewhere about 9 or 10 o'clock Sunday morning he and his family left the place and went into a different part of the city of Houston to spend the day with relatives, and were gone four or five hours. The sale alleged occurred during his absence. He says these sales occurred, if at all, without his knowledge or consent and that he in no way authorized such sales. That he had no bartender, and thatnobody but himself was authorized to sell. That he was spending the time he was absent from his place of business at his mother's and took the key to his house with him. That there was no key to the door of that part of the house where the beer was kept and sold, but that it was barred from the inside and there is a partition between the beer apartment and that portion of the house where his family resides. That Winner was taking care of his place in his absence. That he secured him simply to look after his place and keep things straight, from being stolen and carried away, and to look after his place in a general way; that Winner was without authority to open his beer apartment or sell beer. He says he did not have any beer there on tap; that it ran out about half past eleven o'clock Saturday night, and there was not a drop of beer there on Sunday as far as he knew, and that if Winner got any beer he did not know where he got it. That he himself did not get any beer for him, nor did he know whether Winner took in any money or not. That when he reached his place, after being informed of Winner's arrest, that the door was wide open and the place open to the public. That he did not know whether any beer was sold or not, as he was not there. That he did not leave Winner there to do any business. Among other things, during the examination, appellant was asked the following questions, and made replies as follows: "Q. What did you have to do with him being convicted? (referring to Winner). A. It is my place of business and I am responsible for what happens in my place of business. Q. You knew that when you left him there? A. That is why I told him not to sell anything. Q. You took a chance on that when you left him there? A. Yes, sir; I went away on Sunday lots of times and closed my place of business up and left him there. Walter Winner is a negro. He had never been working for me. I just left him there. I didn't pay him anything. He just stayed there for fun. He just stayed there because he wanted to, I reckon. My brother-in-law raised him, you know." This is perhaps a sufficient statement of the facts to bring in review the main questions in the case.

Section 19 of the Baskin-McGregor Act, Acts of Thirtieth Legislature, p. 266, reads as follows: "Every retail liquor dealer or malt liquor dealer, or other person who shall knowingly sell, give away or otherwise dispose of or suffer the same to be done, about his premises, any intoxicating liquor in any quantity, to any minor, without the written consent of the parent, master or guardian of such minor first had and obtained, or who shall have in his employ about his place of business, or who shall permit any minor to enter and loaf or remain in his place of business, shall be guilty of a misdemeanor," etc. Section 20 prescribes that "any sale, gift or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard, or on Sunday or election day by any agent, clerk or other person acting for any retail liquor dealer or retail malt dealer, or other person, shall be deemed and taken to be for all purposes of this act, as the act of such retail liquor dealer or retail malt dealer, or other person." It will be noted from the reading of these two sections that from the first the owner or principal or anybody about his premises with his knowledge and consent, etc., who shall disobey its provisions shall be punished. That section 20 undertakes to punish any agent, clerk or employe of such principal who does the inhibited things mentioned in said section 20, and also provides that the principal shall be punished for the act of the agent, clerk or employe. It is well known that section 20, above quoted, is practically the same as that known as the Missouri dram shop law. It was taken almost literally from that Act and placed in our statute. The Missouri statute reads thus: "Any sale, gift, or other disposition of intoxicating liquors made to any minor without the permission or consent herein required or to any habitual drunkard by any clerk, agent or other person acting for any dram shop keeper, druggist, merchant or other person, shall be deemed and taken to be for all the purposes of this article as the act of such dram shop keeper, druggist, merchant or other person." So, by a comparison of this quotation from the Missouri dram shop law with section 20 of the Baskin-McGregor law, insofar as the essential principles and questions involved in this case are concerned, they are practically the same. Long prior to the passage of the Baskin-McGregor law the Missouri statute had received a well settled construction by the courts of last resort of that State, and was thoroughly understood by the Legislature of Texas at the time of the adoption of the Baskin-McGregor law. In fact, it may be stated as part of the history of that law, that Mr. McGregor, a member of the Legislature, whose name appears in connection with the law, came from Missouri to Texas and was familiar with the working of what was known as the Missouri dram shop law, and was an eminent lawyer in that State, and with his knowledge of that law and the construction placed upon it, he sought to engraft, and did so successfully, these very provisions of the Missouri dram shop law upon the Texas statute. Wherever a statute has received judicial interpretation by which its terms and its words have been well settled or established as to their meaning and purpose and intent, it will be presumed that such interpretation was intended to be carried into the law when such law has been adopted by another legislative body. Munson v. Hallowell, 26 Tex. 474; Morgan v. Davenport, 60 Tex. 230 [60 Tex. 230]; Brothers v. Mundell, 60 Tex. 240 [60 Tex. 240]; Sanders v. Bridges, 67 Tex. 93. In the case of State v. McCance, 19 S.W. Rep., 648, the Missouri statute in an elaborate opinion by the Supreme Court of Missouri was held to provide a rule that where the agent, clerk or employe sold, it would only be prima facie evidence sufficient to authorize a conviction of the principal, but the decision held the statute did not provide or require or permit that such evidence would be conclusive of the guilt of the principal. It might be rebutted. In other words, the rule stated by that court was to the effect that where an agent, clerk or employe acting within the scope of his agency sold intoxicants in violation of the statute, the principal might be convicted if the case rested or stopped at that point of the evidence. In other words, it was held by this character of evidence the State had made out a prima facie case of sufficient cogency to authorize a conviction, but it was not held that such evidence would be conclusive and not subject to rebuttal. In other words, the principal would not be concluded by the mere fact that his agent or clerk or employe had sold in violation of the statute. He would have the right to meet this state of case to show want of authority on the part of the clerk to make such sale and that the sale was made in violation of his command, or without his knowledge. The decision in substance is that the principal could meet the State's prima facie case by want of knowledge on his part of the illegal act of his employe as well as by showing that he violated his authority or that the sale was not within the scope of his agency. This was a well settled construction placed upon the Missouri statute at the time of the adoption of the Baskin-McGregor law by our legislative body, and the presumption is that our legislative body adopted the Act with the purpose of giving the same effect to it here as had been given it in Missouri before its adoption here.

Again, under section 19 of the Baskin-McGregor law, knowledge is made requisite as a condition precedent to the conviction of the principal for a sale either by himself or through others. Certainly, it would not be proper to hold, nor did the Legislature intend that it should be so, that a violation of section 20 would subject the principal to punishment when the employe sold without his knowledge or authority or beyond the scope of his agency. To hold that the mere fact that the agent sold without the knowledge of the principal or without his authority or over the express inhibition would be to authorize the conviction of the principal for a thing of which he had no knowledge, that it was against his authority, and in such event to prohibit his right to defend against the sale of his clerk under such circumstances. To so hold, it occurs to us, would be directly in the face of the preceding section of the Act. Otherwise we would be met with this peculiar condition of things, that is, the principal could not be convicted under the terms of section 19 except when he knowingly sold or knowingly permitted to be sold by his agent, whereas under section 20 he would be punished for the act of his employe or agent or clerk, while he, the principal, was in perfect ignorance of the act of such employe, or even where the employe sold in absolute disobedience of his orders or authority. It has been held in Texas wherever the question has arisen that there must be some sort of complicity to render the principal guilty for the act of his agent in the absence of the principal, and it has been the settled rule in Texas that where absent parties are sought to be held guilty in misdemeanor cases, that there must be some complicity in some manner shown with the act of the party who committed the offense. Houston v. State, 13 Texas Crim. App., 595. Sections 19 and 20, supra, at this point should be construed together and made to harmonize in their purpose and intent.

If, as a matter of fact, appellant permitted Winner to open his place of business on Sunday, he would be guilty as if he himself had done so, but if Winner opened the place of business and sold beer in violation of the provisions of the law without the authority of appellant or against his orders, certainly appellant could not be held responsible for Winner's act. Appellant's testimony is to the effect that Winner was not his agent, and had no right or authority to open his place of business or sell beer. That he had employed Winner, or had him about his place only to look after and protect it in a general way from depredations during his, appellant's absence. The rule that what an agent does is the act of his principal would not apply where the relation of principal and agent is not shown; or at least to state the rule differently and more favorably to the Act of the Legislature, the relation of principal and agent would not apply where the evidence is that agency did not exist. If Winner was the agent of appellant, employed in and about the business as bartender and sold on Sunday, a prima facie case might be made against appellant by reason of these facts. If appellant's testimony shows the agency did not exist, or that the sale was made in violation of his orders, or against his authority, or even without his knowledge and consent, there would be no case. This position is well recognized as the law in Texas. See Gaiocchio v. State, 9 Texas Crim. App., 387. The rule laid down in McCance case, supra, was emphasized and reiterated in the cases of State v. McGrath, 73 Mo., 181; State v. Baker, 71 Mo., 475. The charge requested by appellant, therefore, should have been given. The question of intent or mistake of fact is not involved in this case and can not be under such state of facts.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Rehearing denied December 22, 1909. — Reporter.]