The indictment charges, in one count, that the defendant, being the owner of a house in the town of Russell, did allow one Jones clandestinely to sell ardent spirits therein. A second count alleged that he allowed Jones to keep such spirits for clandestine sale in said house.
The indictment is based on section 1926 Mansfield’s Digest, which provides as follows :
“Any person owning, or using, or controlling any house or tenement of any kind, who shall sell or give away, or cause or allow to be sold or given away, or keep or allow to be kept for sale or to be given away, any alcohol, ardent or vinous spirits or malt liquors, or any compound or tincture commonly called bitters or tonics, whether the same be sold or given away openly or secretly by such device as is known as ‘ the blind tiger,’ or by any other name or under any other device, shall be deemed guilty of a misdemeanor.”
The testimony was that Crocker had, in March or April, 1885, let to Jones a storehouse at $10 a month for the remainder of that year; that Jones represented that he wished to open a family grocery and run a billiard table; that Jones very soon thereafter began to sell whisky, in some cases openly, but in others by clandestine means, the device being for the customer to go behind the counter, get a bottle of whisky, and deposit the price thereof in a drawer; that Crocker promoted and assisted in such sales by informing thirsty persons that liquor was to be had at Jones’, and that Jones was shortly afterwards arrested for keeping a “ blind tiger.”
The eourt refused the defendant’s prayer for diréctions, to the effect that Crocker could not be convicted without proof; that he knew, at the time of leasing, that Jones was going to engage in the clandestine sale of intoxicating liquors. And it charged in effect that if the tenant used the premises for an illicit purpose, it was the right and duty of the landlord to put an end to the lease, and that his failure to take active measures to stop the traffic, after he had knowledge of it, was allowing the spirits to be sold, within the meaning of the statute. The jury returned a verdict of guilty, and the defendant was condemned to pay a fine of $200 and suffer thirty days’ imprisonment.
sale by tenant: When landlord suiltyThe refusal of defendant’s prayers was not an error. A landlord may be convicted under this act upon evidence that he knew, at the time of the letting, the purpose for which the house was to be used, or that he afterwards advised, encouraged or aided the illegal traffic. The evidence would have been sufficient to convict Jones. And all who procure, participate in, or assent to the commission of a misdemeanor, are punishable as principals. Foster v. State, 45 Ark., 361, and cases cited; Fortenbury v. State, 47 id., 188; People v. Erwin, 4 Denio, 129; State v. Williams, 30 N. J. Law, 102.
But the court went too far in instructing the jury that the mere non-interference of the landlord, after he became aware that his tenant was violating the law, involved him in the guilt of his tenant. The enforcement of a law is a duty which rests primarily upon the officers and courts. The law is not so unreasonable as to require the private citizen to embroil himself in personal difficulties, contentions and law suits for the public good. Robinson v. State, 24 Tex., 152.
Reversed and a new trial ordered.