(concurring). I concur in the judgment of affirmance, but upon grounds different from those stated by the majority. I do not think it is material whether or not Mulkey, the purchaser of the liquor, knew who the seller was. The fact that, according to his own admissions, he acted as messenger or agent for the purchaser made him a participant in the unlawful sale, and he was, therefore, guilty as a principal. That is the logical and necessary result of the decision in Foster v. State, 45 Ark. 361. There the defendant was charged with violating the statute against selling intoxicating liquor to minors. The defendant took the money of a minor, and, acting as the latter’s agent, purchased for him liquor from a licensed dealer. The court decided that he was guilty of aiding in an unlawful sale to a minor. Chief Justice Cock-rill, speaking for the court, after pointing out that the buyer of liquor was guilty of no offense under the statute, said:
‘ ‘As the minor was guilty of no offense, the appellant can not be punished for his complicity in the minor’s act of purchase. If he had done nothing more than counsel and advise the minor in getting the whiskey, he would not have violated the terms of the statute, and could not be held to criminal responsibility. One can not be punished for violating only the spirit of a penal law. But he has done more. He aided and abetted the liquor-seller, and procured him to make the sale to the minor. This is the offense the statute is aimed at.”
He goes on further to say that, if the liquor dealer had been apprised of the fact that the sale was to defendant as agent for a minor, the dealer and the defendant would both be guilty. The point of the case is that one who acts as the agent of the purchaser in bringing about an unlawful sale of liquor is guilty of aiding and abetting the unlawful sale, even though his principal is not guilty under the law. That fully covers this case. The following cases sustain this view, and I think they are sound: Buchanan v. State, 4 Okla. Cr. Rep. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83; Wortham v. State, 80 Miss. 212, 32 So. 50.
In Buchanan v. State, supra, the court cited with approval our case of Foster v. State, and held (quoting the syllabus) that ‘ ‘any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby, aiding and assisting in the sale of such liquors, and may be prosecuted and convicted for such sale.”
My conclusion, therefore, is that the trial court properly held defendant’s own testimony established his guilt, for the reason that it showed that he acted as messenger or agent in purchasing liquor from Russell, who was not a licensed dealer and violated the law in making the sale.