(dissenting). It appears from the evidence in this case that the appellant, desiring to purchase some whisky from a distillery, and not desiring to buy as much as five gallons, which was the least amount the distillery could sell, without license, without a violation of law, solicited several persons to join him in the purchase of five gallons of whisky of the distillery, received from each of them money to buy, in conjunction with the others and himself, such part of the five gallons as each of them wanted, and with the money thus contributed bought of the distillery five gallons of whisky, which they divided between them, according to the amount of money each had contributed. It does not appear from the evidence that the defendant had any interest in the whisky sold by the distillery, that he was the agent of the distillery, or that he received any money for the whisky purchased, save as agent of those who joined him in the purchase, and that what he received he paid over as agent for those interested with him in the purchase, with what he contributed.
Whether the purchase of whisky without license should be made a misdemeanor under penalty, as the sale of it without license is, it is not the province of the court to determine. It is very certain it has not been done in this State, and no court can so construe the statute as to make a purchase of whisky by one person, or two or more persons jointly, a criminal offense.
The idea that a purchase is, or can be construed to be, a sale seems to me contrary to reason, and the spirit and intent as well as the letter of the law. Courts can administer the law only as it is decreed by the legislature ; and, while it is the policy of our legislation to restrict the liquor traffic, the courts can go no further than the legislature has gone. It seems clear beyond question that in this case there was no sale by the defendant, and that he purchased the five gallons of whisky for himself, and as the agent of others who joined him in the purchase; that the purchase was a joint purchase, out of which the defendant made no profit, and in which he had no interest, save, as stated, to the extent of his contribution to buy jointly with others. It seems that to hold this transaction to be a sale by the defendant would be to violate elementary principles of law, and the plainest principles of reason.
In Alabama there was a statute prohibiting the sale or giving away of liquor to persons of known intemperate habits, whether the giver or seller had license or not. In Young v. State, 58 Ala. 358, upon an indictment for a violation of this statute, the proof showed that the defendant received a dollar from B., whom he knew to be a person of intemperate habits, under B.’s promise that the defendant should have any surplus of the money, went and purchased of a liquor dealer a bottle of whisky, and delivered it to B. It was held that this was neither a selling nor giving of liquor to B. by defendant, and was not within the terms or contemplation of the statute. The court said: “One who commits an act which does not come within the words of a penal statute, according to the general and popular understanding of them, when they are not used technically, is not to be punished thereby, merely because the act contravenes the policy of the statute. * * * The real seller was the dealer in liquors of whom the whisky was bought. And the defendant, in getting it, was but the agent of Blackwood, the purchaser.”
In Johnson v. State, 63 Miss. 228, Robert Jackson went to appellant, Johnson, to buy some whisky. Johnson had been selling whisky by the gallon, but was out of whisky, and wanted some himself, and said he would go in with Jackson, and they would buy a gallon jointly. Jackson gave Johnson fifty cents, and Johnson went out, bought a gallon, came back, and divided with Jackson, giving him a pint, which he said was Jackson’s portion. The grand jury indicted Johnson for selling whisky in a less quantity than one gallon, and he was convicted. On the trial the court gave the following instruction for the State: “Although the jury may believe from the evidence that defendant went out, and bought a gallon of whisky, and let Robert Jackson have one pint of it, and that Johnson told Jackson, when he took his money, that he would go in with him, and get a gallon, and let him have a pint for his half dollar, yet this would be a subterfuge and an evasion, and the defendant is still liable to the penalties imposed by law for retailing; and they should find the defendant guilty as charged in the indictment.” And in that case the court refused to give the following instruction for the defendant: “The court charges the for the defendant, that if Robert Jackson paid him the fifty cents before the whisky was purchased, for the express purpose of buying the pint which Jackson received, and that Johnson simply carried it over to his place of business, and delivered it to Jackson, then he did not violate the law, and they will find him not guilty.” The court held that the instruction for the State should not have been given, and that the instruction asked for by the defendant should not have been refused, and said: ‘‘It was not a sale by either to the other, but a purchase by them, and a division between them of the fruits of a joint and lawful investment. And the legal aspect of the transaction would not be changed if, as assumed in the instruction asked by the appellant, Jackson had given appellant money to buy for him (Jackson) less than a gallon of whisky, which was afterwards bought and delivered to him in good faith by appellant. In such case appellant would have been but the agent of Jackson, and the person who sold the liquor, and not the one who bought it, would have violated the law.” In the case of Foster v. State, 45 Ark. 361, the person who bought the whisky for the minor knew that it was unlawful for the saloon keeper to sell to the minor, but procured him to do so, contrary to the statute, and was an accessory, and properly held guilty as a principal, as accessories in misdemeanors are principals. But there is a clear distinction between that case and the one at bar.
The court erred in its instruction to the jury, and the judgment should be reversed for this error, and the cause remanded for a new trial.