Concurring fully in the line of argument adopted by my learned brother, who has delivered the opinion of the Court, and in the conclusion to which it has led, I desire to add some reasons and authorities which it seems to me tend to sustain and strengthen it.
The statute (The Code, §1077) provides that “it shall be unlawful for any dealer in intoxicating drinks or liquors to sell or in any manner to part with, for a compensation therefor, either directly or indirectly, or to give away such drinks or liquor, to any unmarried person under the age of twenty-one years, knowing the said person to be under the age of twenty-one years, provided that such sale or giving away shall be prima, facie evidence of such knowledge.”
Retail dealers are licensed by the order of Boards of County Commissioners “upon satisfactory evidence of good moral character of the applicant.” Lrws of 1891, ch. 323, §32. Proof of moral character is made an. indispensable prerequisite to granting the privilege, and this requirement imposes upon the dealer thus clothed by implication with a public trust, the duty of using extraordinary diligence to prevent all violations of the letter or spirit of the law under cover of theimmunity from indictment for retailing, which the license gives him.
In construing the general statute (The Code, § 1076) which makes a sale “ by the small‘measure, in any other manner than' is prescribed by law,” a misdemeanor, this Court has not hesitated to look through specious evasions in order to determine the real quality of an act. Whether there was direct and positive proof of the actual criminal purpose of the dealer, or such testimony as raised a presumption only of his unlawful intent to evade, or to carelessly permit his agents to evade its provisions, the nisi prius' Judges have been sustained in instructing the jury that the evidence, if believed, would warrant a verdict of guilty. State v. McMinn, 83 *572N. C., 668; State v. Poteet, 86 N. C., 612; State v. Kirkham, 1 Ired., 384
The defendant Kittelle employed two clerks in his barroom, both of whom are indicted with him. The prosecuting witness testified that he bought beer from one of the clerks, he did not remember which one, but could not testify that both were present when he purchased, and that he was at the time under the age of twenty-one years. Though no actual knowledge, on their part, of the age of the witness was shown, the proof of selling was prima fade evidence that they knew he was a minor, and if either had been identified by the testimony as the seller, the Court would have allowed the jury to pass upon the question of his guilt. In the absence of testimony tending to identify the actual seller, the question addressed to the Cotfrt was, whether the unre-, butted presumption that the clerk who did the selling knew that he was dealing with a minor, was priwM fade proof of the guilt of the defendant Kittelle, though the jury believed that the sales were made in violation of his instruction, aiid when he was absent, and could have had no actual knowledge of the transaction.
Conceding, for the sake of argument, as has been contended on behalf of the defendant, that where a legislative act, in unqualified terms, makes a guilty intent of the essence of the offence, the burden is on the State to prove thesdenter, the peculiar proviso to our statute would involve a novel question, not presented as far as my investigations have extended in any of the cases involving the const ruction of liquor laws that have been cited. It is too clear and well setiled to admit of argument, that the mere pioof of the sale to a minor by a clerk raised a presumption of knowledge on the part of the clerk that the purchaser was under twenty-one years of age, notwithstanding the express requirement that the act should be done “knowingly.” State v. Scoggins, 107 N. C., 959. If the artificial force of this prima fade proof *573extends both to agent and principal, and the guilt of the servant is thereby imputed to the employer, the presumption of ihe wilful violation of the statute by the former can be rebutted only by showing a want.of knowledge of the age of the purchaser on the part of the actual seller, not by proof that the owner was absent, in no wise participated in the act, and had expressed his disapproval of such conduct, as in this case. The clerk who made the sale, if the testimony had identified him, and he had chosen to risk his case upon the credibility of evidence offered to identify, might have been convicted under the statute making guilty knowledge of the essence of the offence, by the force of the presumption, when, in fact, he honestly believed the purchaser was an adult. The proviso makes “ such sale to a minor prima facie evidence of such guilty knowledge,” not solely against the active agent who conducted it, but against anyone who might have been convicted upon the evidence adduced, if both the word “knowingly” and the peculiar qualifying proviso by which it is followed had been omitted by the Legislature. In that case it would have been unnecessary to prove the scienter at all, while under the statute as it is, it is essential do so but sub modo, viz., by proof sufficient to raise a presumption of guilty knowledge, and that presumption arists when the fact of being a minor is proved. Is the guilty knowledge of selling to the minor, the presumption of which arose on proof of the age, imputed by the artificial effect of the statute to the dealer as well as to the clerk?
If such is the proper interpretation of its language, it is needless to discuss the question of applying the doctrine of respondeat superior to criminal prosecutions. Where a Sheriff is indicted (under The Code, § 1022) for the escape of a prisoner lawfully placed in his custody, though the prisoner may have escaped from the jail in the immediate charge of a jailor, and in the absence of the Sheriff, the statute imposes the burden on the accused, upon proof that *574the prisoner was duly committed to bis custody, of shoeing that “such escape was not by his consent or negligence, but that he used all legal means to prevent the same and acted with proper care and diligence.” The punishment for the offence is removal from office, and, in addition, a fine at the discretion of the Court; yet it lias never occurred to anyone to doubt the legislative power to make such a law, or to question the propriety of enacting it The statute provides that any dealer of intoxic Ring liquors, who sells, etc., “either directly or indirecdy,” to a minor, shall be guilty of a misdemeanor. What meaning are we to give to the words ■“directly or indirectly”? They were not intended to extend the provisions of the law so as to punish attempts to evade it, because that was entirely unnecessary. The general statute had made it indictable “to retail spirituous liquors” in any other manner than is prescribed by -law, without additional description of the manner of selling, yet it was held a violation of that act to let another go by permission to a barrel and draw a drink at a time, until he should get pay for a debt of $1.25, or to place a table in a room, with a hole in the top communicating with a drawer, and a bottle of whisky and glass sitting on it, and suffer persons to help themselves to a drink of whisky and drop money into the draw'er without communication with the owner. In the latter case, for the purpose of preventing the attempted evasion, the jury were allowed to draw the inference of the agreement to take a given price, and to draw the inference also of a deposit for the customer instead of a manual delivery, which was an essential element of the sale. State v. Poteet, and State v. McMinn, supra. So, where one made a bargain with the dealer to buy a quart of spirituous liquor, but to take it from time to time, in parts of a quart, till in the aggregate he should get that quantity, it was held that the jury were warranted in finding the dealei guilty of unlawful retailing, without an explicit provision in reference *575to evasions, which were deemed prohibited by necessary implication.
The language used in the Illinois statute was, “ Whoever, by himself, clerk or servaut, shall sell, etc., shall be liable;” and the Supreme Court of that State held that testimony, offered to show that the sales to a minor were made bv the dealer’s .clerk, was properly excluded. Noecker v. People, 01 Ill., 494. The material words of the Georgia statute were, “No person, by himself or another, shall sell, etc., or furnish any minor or minors spirituous, intoxicating, or malt liquors,” etc. The Court of that State held that a dealer could be convicted for a sale by his clerks in his absence, and without his knowledge or consent. Loeb v. State, 75 Ga., 258; Snider v. State, 81 Ga., 753 The statute of Arkansas made it a misdemeanor to be “interested ” in a sale of liquor to a minor without the written consent or order of the parent or guardian. Mugler v. State, 47 Ark., 109; Wuller v. State, 78 Ark.,-; Edgar v. State, 45 Ark., 356. The Court held that “ the dealer’s absence from the saloon-when the bartender sold the liquor to the minor,” was not a sufficient defence to an indictment under that statute.
I think that the purpose of the Legislature in inserting the words “ directly or indirectly” in the statute, was not needlessly to notify the people that the Court would tolerate no attempts at evasion by resorting to artifice, but to meet the very difficulty which seems to'have suggested itself to law-makers in other States, and express the same idea conveyed in Illinois by using the words “ by himself, clerk or servant,” in Georgia “by himself or another,” and in Arkansas by extending the criminal liability to everyone who might be interested in the sale to a minor. If, therefore, the words “ directly or indirectly” are susceptible of two interpretations, and might be construed to have been aimed either at evasions by artifice or at violations perpetrated through agents negligently selected, we should adopt that construe*576tion which harmonizes with other legislation upon the same subject, and which manifestly looks to-the end of entrusting the business, which had required so much legal supervision, to men whose characters would be a guaranty that the power would not be abused. This guaranty would be worthless, if they could shift the responsibility upon agents who could carelessly or purposely override all laws imposing safeguards on the business. It would seem an unaccountable oversight if intelligent representatives in our legislatures had attempted to protect the public against nuisance by requiring that all persons applying for license, as an essential prerequisite to obtaining the privilege, should satisfy the County Commissioners that they had established good moral characters, and for a generation past had left them at liberty to employ the most immoral men in the community to conduct the business without incurring liability for such flagrant violations of the liquor laws by these agents in selling to minors. Why require the solemn mockery of proof of moral character by the applicant, if, in an hour after the license is issued, he can constitute the worst man in the community his chief clerk, exhort him to obey the laws of the land, bow himself out, and leave the employee free from oversight to sell on commission till the term of license expires.
The section under which the indictment is drawn does not, as we have said, stand alone, but all of our legislation on the subject points with unerring certainty to the one central object of selecting with care the trusted agents of the government, who shall, by virtue of their high moral characters, enjoy the privilege, and, in view of the temptations incident to the traffic, incur the responsibility of licensed dealers in liquors. In the case of People v. Utter, 44 Barb. (N. Y.), 172, the Court said, in order to convict, proof must be made on the part of the defendant of an intent to violate the statute. Where, as in this case, the sale is not made by the defendant personally, or in his presence, the presumption is not over*577come by merely showing that the sale was made on his premises by his bar-tender.” But if that were a correct statement of the law, in our case the presumption of innocence, which the law raises in favor of the accused, is rebutted by force of the proviso, the effect of which is intended to be felt not simply against the servant, but against one who has proved unmindful of the high trust confided to him by society in employing unreliable agents. The law, which looks so closely to his character, does not intend that he shall reap the profits of illicit sales and escape the responsibility for the consequent injury to society. This question does not depend upon analogies drawn from the construction given to statutes of other States widely different from our own. It is the duty of this Court to give a construction to our own act, which is peculiar in two important respects: First, in the use of the words “directly” and “indirectly,” in order to put the dealer into the shoes of the agent or servant; and, secondly, in neutralizing, by certain evidence, the force of the word “ knowingly” by the proviso following immediately after it, and imposing upon the employee, as well as upon the employer, who is acting “ indirectly” through him, the burden of showing that the former did not have knowledge of the fact, proved otherwise to be true, that the purchaser was a minor. Where the presumption of the scienter may be raised by proving other facts, upon adducing the requisite proof the burden may be shifted so as to dispense with the necessity of offering, in behalf of the State, any direct evidence to show intent at all. Just as soon as the presumption of the scienter is raised, then the prosecution, until rebutting proof is offered, stands in the same position as if. the statute had been silent as to proof of intent. In construing section 41, ch. 34 of the Revised Code, which made “persons neglecting to keep and repair their fences during crop time, in the manner required by la!w, viz, five feet high, guilty of a misdemeanor, this Court held expressly *578that the “foreman, when acting under the general direction of his employer, was not liable to .indictment for failure to keep the fences of the owner in repair, but that the absent employer was indictable.” State v. Taylor, 69 N. C., 543; State v. Bell, 3 Ired , 506; Rex v. Gutch, 1 Mord. & Molk., 437. This is a direct recognition of the principle that where no proof of unlawful intent is required, or where the presumption-of guilty knowledge is raised in a way provided by statute, a defendant, who was not present when the act was done or the duty omitted by another, the doing or omission of which constitutes in law the criminal offence, may, nevertheless, be convicted of it. Kittelle, instead of acting directly as salesman at his own bar, chose to perform that important trust through another. So long as the presumption of guilty knowledge on the part of the employee who made the sale remains unrebutted, the testimony, if believed by the jury, must be considered •prima facie proof of the guilt of an absent hotel-keeper, just as the neglect of the overseer to repair fences is imputed to the absent planter, or as the criminal conduct of an employee was imputed to another, assumed by law to act through him, in the cases of indictment for' sales to minors cited above.
The fact that our statute by its express terms makes the dealer responsible for the act of unlawful selling done indirectly through his servant, and imputes to him the purpose or neglect of the subordinate, easily distinguishes our case from those arising under statutes which contain neither this provision, that requiring express proof of intent, nor that specifying certain evidence that may raise a presumption of guilty knowledge.
' As I understand it, these differences exist between our statute and those of Mississippi and Michigan, to which our attention has been called, and account for the conclusions reached in the cases cited from the Courts mentioned.
*579It is true, that the statute of Maryland did not, in express' terms, make the scienter of the essence of the offence, but it enunciated the very important principle, drawn in question in the argument for the defence, that the act of the bartender would be imputed to his employer, who was held to stand in his shoes, even where the principal offered as a defence the identical evidence introduced in our case, viz., that the sale was made by the clerk- in his absence, without his knowledge, and contrary to his instructions. When, therefore, in the consideration of the case at bar, we recall the fact that, by raising the presumption, the prosecution dispensed with the necessity for further proof of scienter, just as if it had not been required in any event, then the defendant Kittelle is placed by the principle laid down in that case under the same burden imposed by the presumption on the clerk.
The case of State v. Hayes, 67 Iowa, 27, went off on a question quite different from that raised here. While the Court laid down, in unmistakable terms, the proposition • that a dealer engaged in the business of selling intoxicating liquors “ is criminally liable for the acts of his servant or agent done in the course of the business,” under a statute which made a guilty knowledge necessary and provided that he should be responsible for sales “ by himself, his servant, or his agent,” the defendant was discharged for want of proof to support an averment of the indictment, di’awn under another clause of the act to the effect that the proprietor kept the spirits with unlawful intent.
I do not contend that the opinion of the Court is sustained by all of the American Courts. Indeed, I find two cases that seem to be plainly in conflict with it. Anderson v. State 22 Ohio, 305, and Bower v. State, 19 Conn., 398. The Missouri statute, which was construed in State v. Shortell, 93 Mo., 123, failed expressly to prohibit sales made through another, and the decision is put upon that ground, thus plainly dis*580tinguishing it from the case at bar. The Supreme Court of New York, in People v. Schoffer, 4 Hun., 23, and People v. Mahoney, Ibid, 26, approved the principle which I have stated: that on making proof, which, according to the terms of the statute, raises a presumption of guilty knowledge, the necessity for further evidence of' intent is dispensed with. It will not be seriously contended that the Legislature has not the power to give such artificial weight to testimony in criminal actions. The tendency in America, during the last twenty years, has been to provide, by express legislation, for punishing the real proprietors of drinking saloons for the unlawful acts of their agents and servants. And the various statutes have given expression to the common purpose in different terms, as will appear by reference to the quotations from the acts of Arkansas, Georgia, Iowa and other States. In later years, the Courts of most of the States, in construing the statutes, show no disposition to follow the older line of cases, like those cited from the Reports of Ohio, Connecticut and Massachusetts. Following the general current of more modern authority, and the giving to the law under which the indictment is drawn the construction of which it seems so clearly susceptible, I have eliminated the questions that have given rise to the most serious controversy. If the Legislature had the power to declare that a sale made by a clerk should be deemed to have been made by his employer, and the words of the statute can be fairly construed to mean that it has so declared, then the necessity for discussing the general doctrine of the criminal responsibility of principals for-the acts of agents done in the absence of the principals, would seem to be obviated. If we were compelled to fall back upon general principles, we would find that, after taking a survey of all the conflicting authorities, Wharton (2 Or. Law, section 1503) states his conclusion as to the general liability of principals to indictment for unlawful sales by agents, as follows: “A shop or hotel keeper is indictable for *581an unlawful sale of spirituous liquors by a servant employed in his business, as all concerned are principals; nor in such a case is it anj^ defence that the agent was directed by the principal not to make the particular sale complained of. Where the sale is not in the immediate line and direction of the principal’s business, the fact of agency is only prima facie evidence of the principal’s guilt.” The implication being, as is declared by other writers, that if the sale is made at a hotel bar by a clerk emploj'ed to attend to it in the regular course of the business, it will be deemed, for all purposes, the act of the principal himself, who can avail himself of no defence that would not exculpate the agent.
The statement of the case on appeal does not purport to contain the -whole of the testimony. No question seems to have been raised as to whether the witness, to whom the sale -was made, -was married and a minor. It seems to have been admitted, as it doubtless appeared by the evidence, that he was not married, and no question was raised as to the fact that he was a minor.
I see no cause to apprehend danger from giving to our statute a reasonable interpretation, and one that will afford to society the protection that necessarily grows out of the consciousness of responsibility by dealers in intoxicating liquors for acts of their agents done in the line of that business. We will be following in the wake of our sister States of Arkansas, Iowa and Georgia in construing our statute so as to carry out the manifest legislative intent, and at the same time we wall reach such a conclusion as will be in harmony with the manifest purpose of the Legislature in passing other kindred law’s. If the General Assembly should see fit to declare in express terms that general merchants should be held criminally liable for felonies or misdemeanors committed by their clerks in the ordinary course of business, I think that such a law would stimulate the proprietors of such stores to very great diligence in the search for honest *582and law-abiding salesmen ; but until such action shall have been taken by the Legislature, nothing, in the opinion of this Court, it seems to me, can be construed to place the merchants in peril of vicarious suffering for the crimes of their clerks. Upon the payment of the prescribed amount the merchant, be he the veriest villain in the land, has a right to demand any license that he may be required to have. Should the Legislature, in the exercise of its police power, and in order to protect agriculture, require him to prove a good moral character, and pay for the privilege of buying certain products after night, and make him liable for purchases of stolen cotton, made by his agents between sunset and sunrise, a different question would be presented. State v. Moore, 104 N. C., 714.