(dissenting): Fully sympathizing, as I do in the solicitude of my brethren that there should be a rigid enforcement of all laws which are intended to suppress the pernicious practice of selling intoxicating liquors to minors, I am, nevertheless, unable to follow them to the extreme position of sustaining the conviction in the present case. To my mind, it involves not only a radical departure from well settled legal principles, as illustrated by the current of judicial decision, but it establishes a most dangerous precedent, the effects of which, in unsettling the old and well defined safeguards of personal liberty, cannot well be estimated.
The defendant is indicted for selling intoxicating spirits to an “unmarried person under twenty-one years of age, knowing such person to be under that age (The Code, § 1077), and the refused instruction assumes that the unlawful sale was made by one of the clerks of the defendant, not only without his knowledge, but “ in violation of his instructions and against his wishes.” We thus have the legal paradox of a man being convicted of knowingly doing an act of which he *583was entirely ignorant, and which was done in opposition to hiswishes and commands.
So’strange a result cannot but challenge an inquiry into the principles by which it has been reached, and I am very sure that they cannot be found in the common law doctrine which, in misdemeanors, treats as principals all persons who would ordinarily be accessories before the fact; for there can be no accessory, and therefore no such principal, unless the accused shall have procured, counselled, or commanded another to commit the criminal act. 1 Hale P. C., 616; 4 Blackstone, 36; State v. Mann, 1 Hay., 4.
The conviction, therefore, must necessarily be sustained on the ground of the liability of a principal for the acts of his agent, and while this doctrine of respondeat superior is fully recognized by the law, and even applied in some instances to criminal cases, it has never before, I think, been stretched to the same extent as in the case now under consideration. Without attempting to discuss the general doctrine of the criminal responsibility of the principal for the act of the agent, it is sufficient to remark, with Judge Cooley, as quoted in the opinion, that many statutes which are in the nature of police regulations, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. Under statutes of this character the principal has, in a very few of the States, been held conclusively liable for the act of his agent in the unlawful sale of liquor to minors, while in others the doctrine has been expressly repudiated, and amendments to the statutes thereby necessitated. It is under such statutes or amendatory acts that the decisions which are cited in the opinion are made. The law is otherwise where the statute makes the criminal intent or knowledge an essential ingredient of the offence, and I trust that I may be pardoned for remarking that it is in the failure to observe this all-impor*584tant distinction that the fundamental error of the Court is to be found. All that has been so w.ell said about the policy of the law in dispensing with the element of intent or scienter, and the consequent liability of the principal, is applicable to the class of cases mentioned by Judge Cooley, and clearly, has no relation to the class to which the present case belongs, in which scienter is an indispensable requisite to a conviction. It is not a little remarkable that this very distinction is to be found in the authorities cited in the opinion of the Court. Take, for instance, the case of Farrell v. The State (32 Ohio St., 456; 30 Am. Reports, 614), and the notes referred to. In these notes I find the following propositions, viz.:
“First. When, to an offence, knowledge of certain facts is essential, then ignorance of these facts is a defence. Second. When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defence.”
It is also remarkable that it is under the second proposition that the learned annotator has placed McCutcheon v. The People (69 Ill., 601), one of the leading authorities cited in support of the present decision. The foregoing propositions are also sustained in State v. McBrayer, 98 N. C., 621 (cited in the opinion), in which the present Chief Justice says: “It is only when the positive wilful purpose to violate a criminal statute, as distinguished from a mere violation thereof, is made an essential ingredient of the offence that honest mistake and misapprehension excuses and saves the alleged offender from guilt.” See also State v. King, 86 N. C., 603. It is further to be observed, that this very doctrine is substantially stated in the opinion of the Court and wholly ignored by the decision. The Court says: “There is, however, a well-defined distinction between those acts which are criminal only by reason of the.intent with which they are done, and those in which the intent to commit the forbidden act is itself the criminal act.” It is manifest that knowledge and intent are used as interchangeable terms, *585and even if it did not so appear, they must, of course, as a matter of law, be considered as synonymous when applied to cases of this character. 1 Whar. Cr. L., 297. The cases of State v. Wool, 86 N. C., 708, and Ferrell v. State, supra, fall within .the latter branch of the above proposition, and it will be seen hereafter that the other cases cited in its immediate connection have but little or no bearing upon the point before us.
Having fully established the distinction above mentioned, I will now proceed to an investigation of the other authorities upon which the decision is based. The case of Ferrell v. The State, supra, so far from sustaining, seems to be.in direct conflict with the view of the Court, as it is there held, even under a statute which did not require any scienter or intent, that the defendant could show in his defence that the liquor he sold was represented to him as free from alcoholic properties, and that he sold it with that understanding and belief.
In Carroll v. State, 63 Md., 551; People v. Robey, 52 Mich., 270, and the cases from Illinois, Arkansas, Georgia, West Virginia, Mississippi, and England, I find upon examination that the statutes involved in their decision do not require the existence of a guilty intent or knowledge.
The only case that comes anywhere near sustaining the contention of the State is that of Redgate v. Haynes, L. R. Q. B. Div., 89, but it will be noted that the statute punishes the “suffering” of gaming to be carried on upon the premises, under which it is possible that the negligence of the landlady might be held sufficient. BlackbueN, J., however, used the following language: “I agree that the mere fact that gaming was carried on 'on her premises would not render her liable to be convicted, because that is not ‘suffering’ the gaming to be carried on, and if the Justices were of a different opinion, they were wrong; but I think if she purposely abstained from ascertaining whether gaming was going *586on or not, or, in other words, connived at it, that this would be enough to make her liable.” Of the same opinion was Lush, J., the other sitting Judge, who said: “The only question here is whether there was any evidence of such connivance, and I think there was.” Thus it appears that even this case seems to conflict with the principle in support of which it is cited; and among the other decisions referred to in the opinion (which, as I have observed, are founded upon statutes not requiring intent or scienter) there may be found some which conflict with the doctrine laid down by the Court. For instance, in the case of Whitton v. The State of Mississippi, the indictment was for selling to an intoxicated person, and the statute did not require a guilty knowledge or intent; the Court said that “it was certainly necessary that the defendant should either have known or have had good reason to believe that the person to whom the liquor was sold was intoxicated at the time of the sale.” Another striking instance may be found in Mullins v. Collins, 9 Q. B., 292, of -which I will speak hereafter. The passages cited from Wharton’s Criminal Law are broad enough to sustain the position of the State, but J find that they are all based upon statutes which make the forbidden act indictable irrespective of a guilty knowledge or intent, and that in some of the statutes it is expressly provided (as in West Virginia and Illinois) that a sale to minors by any person, “ by agent or otherwise,” is an offence against the criminal law. In West Virginia it is also provided that a sale “ by one person for another shall, in any prosecution for such sale, be taken and deemed a sale by both,” etc.
In State v. Mogler, 47 Arkansas, much relied upon by the State, it is expressly said that the case was decided upon an act of the Legislature (1879), which changed the law to avoid the effect of the decision in the previous case of State v. Cloud, 36 Arkansas, wherein it was distinctly held that a bar-keeper could not be criminally liable for a sale made by his clerk in his absence, and without his authority.
*587In Carroll v. The State, 63 Md., supra, the Court said that “it is not necessary to allege scienter, because it is not made an ingredient by the statute that the thing shall be knowingly and wilfully done to make the violation of the statute an offence.” It is manifest that if the statute had required such an ingredient, the Court would not have held the principal criminally liable. In Barnes v. The State, 19 Conn., 398, the defendant was indicted for selling liquor to a common drunkard, and it appeared that the sale was made by the clerks of the defendant, and it was held to be error to exclude evidence that the defendant had given his clerks specific directions to sell no liquor to common drunkards.
In State v. Wool, 86 N. C. 708, the indictment was simply for an unlawful sale by a retailer (not by his agent) without the prescription of a physician, and no knowledge or intent is required by the statute to constitute the offence. The liability of the principal for the act of his agent did not arise in the case.
In State v. McBrayer, supra, the indictment was upon the statute- now under consideration, but the sole point determined was that a physician who keeps on hand intoxicating liquors for the purpose of sale or profit was a “ dealer,” and that if he prescribed it and gave it to a minor, he would be guilty. The case was put upon the ground that ignorance of the law is no defence, and the decisions in State v. Boyett, 10 Ired., 336, and State v. Pressnell, 12 Ired., 103, for illegal voting under a mistake of law were cited. State v. Dickens, 1 Haywood, 407, was a case of extortion, and also a question of law, though it has been overruled by this Court, and a criminal intent is now required. State v. Pritchard, 107 N. C., 921.
State v. Scoggins, 107 N. C., 959, turned upon a question of evasion by an adult purchasing with the money of the minor, and then giving him the liquor. State v. Lawrence, 97 N. C., 492, simply decides that a father cannot authorize a sale to *588his minor son. State v. Neely, Winst., 334, only decides that a licensee may employ an agent, and that the latter will be protected, but that his assignee will not be protected. It is said, in passim, “ the master remaining liable for the acts and contracts of such clerk or agent done or made within the scope of his employment.” This very clearly had no reference to the present or any other similar statute, as there were none such in existence at the time in this State.
In respect to the libel case of Rex v. Gutch, M. & M., 433, it is only necessary to refer to Bishop’s Criminal Law (Yol. I, 219) to see that it lends no support to the contention of the State. The learned author says: “ The master is never liable criminally for acts of his servant, done without his consent and against his express orders. The liability of a bookseller to be indicted for a libel, solgL from his store by his clerk, is nearest to it. But the character of these cases has not always been understood. If carefully examined, they will be found to contain no new doctrine. * * * They make a sale in a master’s store high, and unexplained, decisive evidence of his assent and co-operation; but they will.not bear out the claim that a bookseller is liable, at all events, for a sale by his general clerk. Lord Makseield said, in Rex v. Almon, 5 Bur., 2686: ‘ The master may avoid the effect of the sale by showing that he was not privy nor assenting to it, nor encouraging it.’ So, in Starkie, it is said that the defendant in such cases may rebut the presumption by showing that the libel -was sold contrary to his orders or under circumstances negativing all privity on his part.” See, also, 1 Hawk., C., 73; Rex v. Walter, 3 Esp. R., 21; Gen’l v. Siddon, 1 Crompt. & Jarvis, 220. In Mullins v. Collins, supra, cited by the Court, the distinction I have been endeavoring to draw is clearly recognized. The defendant was indicted for supplying liquor to a constable on duty, and it was held that the licensee was liable, although he had no knovdedge of the act of his servant. Arohibold, J., said that “ section 16 is one of a series *589of clauses, headed offences against the public order, and must, therefore, be construed in the way most effective for maintaining public order. It contains three subsections, the first of which creates offences which must be ‘knowingly’ committed, but the appellant has been convicted under the second subsection, where the ioord ‘ knowingly’ is omitted. This seems to point to the conclusion that the licensed victualler will be liable for the act of his servant, although he himself has not knowingly committed a.n offence against the second subsection.” In view of these authorities, chiefly cited in the opinion, it would seem unnecessary to produce any others to sustain the position that where the statute makes the guilty knowledge of the dealer an essential ingredient of the offence, the principal without such knowledge cannot be convicted by the act of his servant. Not a single authority has been produced where, under a similar statute, a conviction has ever been sustained under such circumstances, while most of the cases cited by the Court abundantly sustain the opposite view.
Mr. Bishop says (Bishop Stat. Crimes, 1022; 1 Bishop Crim. Law, 522, 523): “ Where the statute is silent as to the defendant’s intent or knowledge, the indictment need not allege, or the government’s evidence show, that he knew the fact; his being misled concerning it is a matter for him to set up in defence and prove. Quite different are the law and procedure -where the statute has the word “ knowingly,” or the like: knowledge there is an element in the crime, the indictment must allege it, and the evidence against the defendant must affirmatively establish its existence.” See, also, 1 Wharton, 297. In Hunter v. The State (18 Tex., 444), the Court said that “ knowledge of this fact (minority) by the defendant, at the time of the act, is as essential to constitute this offence as a fraudulent intent at the time of taking property is to constitute the crime of larceny.” It is hardly necessary. to say anything further in support of what I conceive *590to be so plain a proposition, and I will now cite a few of the numerous authorities which, in addition to those already referred to, bear directly upon the particular question before us. “ Under the statutes forbidding the sale of intoxicating drinks without license, and the former enactments against selling goods to slaves without the consent of their masters (See State v. Privett, 4 Jones, 100), it is sufficient in defence that the sale was made by the defendant’s clerk unauthorized either absolutely or by implication.” 1 Bishop C. L., 220; State v. Lawson, 2 Bay., 360; Ewing v. Thompson, 13 Mo., 132; Caldwell v. Sacra, Litt. Sel. Cases, 118.
In Commonwealth v. Nicholas, 10 Met., 259, which was a prosecution for the unlawful sale of liquor, it was held that “if a sale of liquor is made by the servant, without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved or countenanced by him, and this is clearly shown by the master, he ought to be acquitted.” The Court said: “We are aware, as already intimated, the master is sometimes made responsible, civilly, for his servant’s misconduct. The responsibility may grow out of an express or implied undertaking that the thing to be done shall be well done, or out of that great princple of vigilance imposed upon a master that he must see that his business is conducted so as not to injure others, or that his servants shall be duly attentive and prudent. But the master is never liable criminally for acts of his servants, done without -his consent and against his express orders.” This case is cited with approval in the late decision in Commonwealth v. Stevens, 151 Mass., 26 N. E. Rep., 992. So in Hipp v. The State, 2 Black., 149, it was held that an innkeeper was not liable for the selling of spirituous liquor to an intoxicated person by his bar-keeper, in his absence and without his knowledge. So in Commonwealth v. Bryant, 142 Mass., 463, it was held that an unlawful sale of intoxicating liquor by a servant in his master’s shop, and in the regular *591course of his master’s lawful business, is not prima facie a sale by the master. The Court said that the “ facts that a man employs a servant to conduct a business expressly authorized by statute, and that the servant makes the unlawful sale in the course of it, do not necessarily overcome the presumption of innocence merely because the business is liquor selling, and may be carried beyond it.” Commonwealth v. Putnam, 4 Gray, 16; Commonwealth v. Dunbar, 9 Gray, 298; Barrington v. Simpson, 134 Mass., 169; 45 Am. Rep., 314; Commonwealth v. Hayes, 145 Mass., 289.
. In the American and English Enc., Vol. II, 711, et seq, many cases are collated, some of which I have been unable to examine. It is stated in the text that “ a licensee to sell intoxicating liquors is bound, at his peril, to see that the conditions of the license are complied with by his servants or agents, but to render a defendant liable for sales made by agents or servants, a defendant’s knowledge or consent must be shown.” To the same effect are the cases of People v. Utter, 44 Barb , 170; Anderson v. State, 22 Ohio, 305; Commonwealth v. Nicholas, 10 Met., 259; Wetzter v. State, 18 Ind., 35; Wreidst v. State, 48 Ind., 579: State v. Hayes, 67 Iowa, 27; State v. Shortell, 93 Mo., 123; Commonwealth v. Wachendarf, 141 Mass., 170. In the last case, the Court said: “It would require a clear expression of the will of the Legislature to justify a construction of a penal statute which would expose an innocent man to a disgraceful punishment for an act of which he had no knowledge, which he did not in any way take part in or authorize, but which he had forbidden.” When -we consider that the cases cited are upon statutes which, like those referred to in the opinion, do not require a guilty knowledge or intent, and that they indicate very clearly that the great weight of authority, even upon such statutes, is against the contention of the State, and when we further consider, as I have already observed, that not one decision has been produced which dispenses with a guijty *592knowledge or intent, where the law expressly requires it, I think it must be apparent that the doctrine of respondeat superior has, in this case, been extended beyond the limits of precedent, and with all deference, I will add beyond the well settled principles of the criminal law. It is said that any other ruling would lead to an evasion of the law in many instances, and that the principal should be held to such an accountability because of the trust reposed in him by reason of his selection by the County Commissioners as a fit person to retail intoxicating liquor. It must be remembered that the public is not without protection, as the agent or servant who makes an unlawful sale is liable to be indicted and punished. State v. Wallace, 94 N. C., 829. The possible evils resulting from a failure to hold an innocent principal guilty, is a matter which should be addressed to the lawmakers ; and if they see fit to do so, they may enact laws similar to those in West Virginia, Arkansas, Maine, Illinois and other States, under which the principal is held to be chargeable with the guilty knowledge of the agent. It was because of the existence of the principle I am insisting upon that such laws were made, and that legislation -was deemed necessary in this State in order to fasten a criminal liability upon the principal, is apparent from section 90, ch. 34, Rev. Code, in which it was expressly provided that in unlawful sales to- slaves, the principal should be criminally liable for the act of his agen't, unless he showed that the sale was made without his consent. Public policy may.have much to do in the interpretation of statutory laws, but I do not see how it can control language, which is not only free from ambiguity and doubt, but has universally been held to be susceptible of but one meaning when used in criminal offences. If the policy to be subserved requires a conviction in a case like the present, it is very strange that such great pains should have been taken to defeat its object by explicitly requiring that the unlawful act should be accompanied with *593a guilty knowledge. The position of the State cannot rest upon public policy alone, but it must be based upon some principle, and this principle must necessarily be, that in criminal cases the actual or constructive knowledge of the agent is the knowledge of the principal.
The merchant whose clerk, against his instructions and without his knowledge, purchases cotton in the seed between the hours of sunset and sunrise (The Code, §§ 1043, 1046) must, upon this principle, be held guilty of a violation of the criminal law; and far worse than this, if the clerk purchases goods, knowing them to have been stolen, the innocent merchant may be convicted and imprisoned in the State’s prison for a long term of years. It is a matter of public policy that the crime of larceny should be suppressed, but it would be startling, indeed, if the guilty knowledge which is required by the statute should be ignored on such a ground, and the most respectable merchants in the State exposed to the punishment of a felon. The Code, § 1074. The statute requires a guilty knowledge to constitute the offence of receiving, and I cannot see how the same language can be construed to mean actual knowledge in one case, and a constructive knowledge in the other. It is said that the distinction consists in the fact that the dealer in liquors is selected by reason of his fitness to carry on that particular business, and therefore he must be held responsible for the acts of his servants, but it is submitted that such a reason cannot have the effect of overriding the plain and unmistakable language of the law, which is, in substance, the same in both cases. Such considerations may be influential-with the Legislature in order that the law may be amended so as to hold the principal-responsible for his negligence in the selection of improper agents and for their unlawful conduct, but it cannot authorize a Court to ignore its explicit requirements.
It is further argued, that the act of the agent in selling to a minor makes out a prima facie case of knowledge, and *594there being no evidence on the part of the agent in rebuttal, the principal must therefore be guilty. This is very true as to the agent, but it is a petitio principii to say that such constructive knowledge is the knowledge of .the principal, as that is the very question we are called upon to determine. It is plain, from our statute, that the presumption of scienter arises only as against the person who does the selling, and the law has been careful to provide that such a person may rebut the presumption and show the truth of the transaction. If the law, then, is so careful as to the actual vendor, it would be strange, indeed, if it did not display some solicitude for one who had no knowledge whatever of the particular transaction. It must be evident that the Legislature never intended that anyone should be convicted under this law without being permitted to show his innocence, and if the agent who does the selling could rebut the prima facie case of guilty knowledge which is raised by his own act, it would be a hard measure, indeed, to deny the same privilege to one who is admittedly innocent both of the unlawful act and the guilty'knowledge.
In providing that the unlawful sale should be prima facie evidence of knowledge, the law did not intend to dispense with the element of scienter as an ingredient of the crime. It simply shifted the burden of proof, reserving to the defendant the right to show his innocence. It was never intended, I think, to extend the prima facie case to one who did not commit the act, and at the same time put it in the power of the person who committed the act, either by neglect or connivance, to shut out all testimony whatever tending to show the absolute innocence of the party charged. I am very sure that the prima facie case applies only to the person making the sale; but if this is not true, and it is extended to the principal, why, pray, does not the right to rebut the prim,a facie case go along wdth it? It is said that the defendant has such a right, but it is to be restricted to *595the rebuttal of the guilty knowledge of the agent alone, and that however innocent, in fact, the principal may be, he is precluded from showing it. Thus we have, as a result, the naked proposition that there' can be such an anomaly as what may be termed an irrebuttable constructive scienter, when the plain language of the statute requires that the dealer shall not be convicted if he shows that he is without guilty knowledge.
It may be observed that the incongruity of the position is further illustrated by the fact that the record discloses that both of the clerks, who were indicted and tried with the defendant, were acquitted; and thus we have the case of a principal being convicted for the act of an agent who himself has been declared innocent.
Now, it may be that a person can be convicted who commands two others to commit an offence, and the proof shows that it must necessarily have been committed by one of them, although both must be acquitted because of the inability of the jury to-find which of the two committed the crime; but where the principal is absent and the offence is committed contrary to his wishes and commands,and his guilt is asserted solely on the ground of agency, it would-seem to present, at least, a novel ground-woik upon which to build a case of constructive crime, it being impossible for the defendant to ascertain upon which agent the ‘prima fade case, which he is required to rebut, has been imposed. The genius of free and constitutional government is opposed to constructive crime, and while I do not say it may not be warranted in cases of this character, where, in the interest of good morals; a great evil should be suppressed, I cannot sanction such a doctrine, when, as in this instance, the Legislature has not only failed to authorize, but, in my opinion, has expressly forbidden it. Ingenuity may be able to construct a plausible argument in support of the conviction, but I think it must be attended with difficulry, and especially must this *596be so when the rule which requires all penal statutes to be construed strictly has always been considered in this State to be something more than a mere idle expression. The rule is founded upon the' great principles of the criminal law, and must be followed in this as well as in other cases. I can see no reason why the principle of the conviction in this case may not, as I have indicated, be extended to offences of a more serious character, and it is chiefly because of this possible evil that I have felt it my duty to state the grounds of my dissent at such length.
“ Bad precedents,” it is said, “ are like arrows shot from a bow. They cannot be controlled after they have left the string. Their logical sequence often runs terribly away to consequences never dreamed of. * * * I distrust the social advantages promoted by decisions of this nature. Timeo Dañaos et dona, ferentes. They have the fair • semblance of handmaidens of morality. They may be wooden horses unwittingly drawn within the citadel of the Bill of Rights.”
In conclusion, I will add that the defendant is also entitled to a new trial on the ground that his Honor charged the jury that if they believed that the witness bought of one of the clerks the defendant was guilty. There could be no prima facie case against anyone until the fact of minority was found, but notwithstanding this the guilt of the defendant was made to turn upon the simple fact of selling to the witness. There are no admissions in the case, and the charge of the Court in this particular was excepted to. The error is too plain for further elaboration, and thus the very foundation of this constructive crime is swept away. It may be said the refused instructions assumed the minority of the witness, but it surely cannot be insisted that every hypothesis contained in a refused instruction is to be construed into solemn admissions, and that the Judge, in charging the .jury on the whole case, is to assume them to be true. Besides, it was equally necessary that the State should establish the fact that *597the witness was unmarried, and not a word is said about this essential ingredient, either in the prayer for instructions or in the charge as given. For the reasons stated, I am of opinion that defendant has been improperly convicted, and that he is entitled to a new trial.
Per curiam. Affirmed.