The Code, §§1077 and 1078, makes it a misdemeanor for any dealer in intoxicating liquor to sell directly or indirectly, or give away such liquor to any unmarried person under twenty-one years of age', knowing such person to be under that age, and that such sale or giving away shall be prima jade evidence of such knowledge, and further, that the father, mother, guardian or employer of a minor to whom intoxicating liquor shall be sold or given away, may maintain an action for exemplary damages, and that in no case can the jury award the plaintiff a less sum than twenty-five dollars.
The defendant contends that no one can be held criminally liable for an act which is done without his knowledge or consent. This is' the strength of his contention. It is, in substance, that guilt cannot be attributed to him in this matter, because guilt consists in the intention, and that he had no intention to violate the law, because he neither knew of nor consented to the sale. Tnere 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 intent. As to this very matter of the sale of spirituous liquor to minors, it has often been held that the lack of intention to violate the law did not exculpate,.if, in fact, the defendant did the act, or authorized it to be done,, which constituted a breach of the law. State v. Wool, 86 N. C., 708; State v. McBrayer, 98 N. C., 619; State v. Scoggins, 107 N. C., 959; State v. Lawrence, 97 N. C. 492;
A principal is prima facie liable for the acts of his agents done in the general course of business authorized by him, as where a bar-keeper sells liquor, or a clerk sells a libel, or prints one in a newspaper. 1 Whar. Cr. Law, 247, 341 and 2422. And a vendor of spirituous liquors is indictable for the unlawful sale by his agent employed in bis business, because all concerned are principals. 2 Whar. Cr. Law, 1503. In Carroll v. The State, 63 Md., 551, it is held that if, in the oonduct- of the business of selling liquors, a prohibited sale is made by the agent to a minor, the principal cannot shield himself from liability on the ground that his agent violated his general instructions, and did not inquire, or was deceived by the purchaser as to his age; that while deriving profit from the sale, the principal cannot delegate his duty to know that the purchaser is a lawful one to the determination of an agent and be excused by the agent’s negligence or error; that intention not being an essential ingredient of the offence, the principal is held bound for the acts of his agent in violation of law while pursuing his ordinary business as such agent; being engaged in business where it is lawful to sell only to such persons as are not excepted by law, it is his 'duty to know when a sale is made that it is to a properly situated person, and therefore it is his duty'to trust nobody to do his work but some one whom he can safely trust to discharge his whole duty, and if he does not do so, the law holds him answerable. The same is held in State v. Denson, 31 W. Va., 122; State v. Dow, 21 Vt., 484; and to the same •effect are numerous other decisions. 11 Am. & Eng. Enc., 718.
The same principle of the principal being criminally liable for the misconduct of his agents applies to many other offences. In the leading case of Rex v. Gutch, M. & M., 433, cited in 1 Taylor’s Ev., 827, which was a prosecution for libel, Lord Tenterden said: “A person who derives profit from, and
In Redgate v. Hayes, L. R., 1 Q B. Div. 89, the defendant was charged with suffering gaming to be carried on upon her premises. She had retired for the night, leaving the house in charge of the hall porter, who withdrew his'chair to another part of the hotel and did not see the geming.' It was held that the landlady was responsible. The same principle was maintained in Mullins v. Collins, L R., 9 Q B., 292, where the servant of a licensee supplied liquor to a constable on duty, and the Court held the licensee answerable, though he had no knowledge of the act of his agent.
In the present case, had the defendant himself sold the liquor to the minor he would be fixed prima facie with the knowledge that the purchaser was a minor. The contention of the defendant that such prim.a facie knowledge is rebutted by the fact that .he was not personally present, omits consideration of the fact that the knowledge of the agent is the knowledge of the principal. This is always true, though the intent of the agent (when material) is not necessarily the intent of the principal. The law requires the County Commissioners to issue license to retail liquor only to persons whom they shall find properly qualified. This is construed in Muller v. Commissioners, 89 N. C., 171, to mean that, among other things, the applicant must possess a good moral character. It would be a vain thing to require the Commissioners to take the pains and trouble to ascertain whether the applicant is properly qualified, and to reject him if he is not, if the licensee may immediately upon opening his bar set up as his clerk another applicant who has, perhaps, just been rejected by the County Commissioners, after due inquiry, as not properly qualified, and may claim, upon a violation of the law by such clerk, that he; the licensee, is not liable, because he had instructed his clerk when he employed him not to
The defendant’s clerks had no license to retail liquor. Every sale by them to anyone is indictable, and the defendant is indictable with them as co-principal (there being no accessories in misdemeanors) for aiding and abetting them in their illegal traffic, unless it is true that their sales are his sales. If it is valid to protect such sales by them under the authority of the license to him, then their sale is also his sale to make him liable if the terms of the license are not complied with. The licensee cannot put his clerks in his shoes, give them the benefit of the license issued to him upon the confidence reposed in his moral character, and not be held responsible for their violations of the law in the scope of such employment. He cannot set up his bar, receive its profits and abdicate his duties. The duty is imposed on him that the law shall not be violated by a sale to a minor. Here the sale was to a minor. The defendant put it in the power and authority of the clerk to sell. It was the defendant’s own risk and peril that he was not present, and that he did not make the sale himself. That his agent did not obey his instructions and negligent!}- or purposely violated the law, does not exculpate the defendant. The law has been violated. It looks to the man it authorized to sell — the licensee — this defendant. The sale by the clerk was in law a sale by the principal, and the violation of the law must be laid upon the defendant, who gave the clerk
Either the licensee is responsible for illegal sales by the clerk (State v. McNeeley, 60 N. C., 232), or the licensee has no authority under his license to sell through the medium of a clerk, and all sales must be by the person himself w'hom the Commissioners have found “ properly qualified,” and have licensed to sell. Any other view of the matter would be illogical, and would be a virtual repeal of the law. It would empower ihe bar-keeper to appoint others as bar keepers, whom, perhaps, the County Commissioners would have refused to license. However well “ qualified” the Commissioners may find the party whom they license, there is no guarantee that he will select clerks who are so, or that he has the energy, the judgment or the skill to prevent violations by them. The law will look.to the man it licenses, and he must select his clerks and be responsible for them at his peril.
In Carroll v. State, supra, the Supreme Court of Maryland, upon a state .of facts and a statute almost identical, comes to the same conclusion, it says: “When the agent, as in this case, is set to do the very thing which, and which only, the principal’s business contemplates, namely, the dispensing of liquors to purchasers, the principal must be chargeable with the agent’s violation of legal restrictions on the business.
In People v. Roby, 50 Am. Rep., 270 (52 Mich., 577), and People v. Blake, 52 Mich., 566, it is held that “ the owner of a saloon whose clerk, without his knowledge or consent, but while he was on the premises, opened it on Sunday morning to clean it out, and sold a drink to a customer, may properly be convicted of keeping a saloon open on Sunday.” The opinion in the first-named case is delivered by Cooley, C. J., the eminent writer on Constitutional Limitations, and in the course of it he says: “As a rule, there can be no crime without a criminal intent, but this is by no means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, 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,” and numerous incidents and precedents are cited to support the proposition. Bona fides was held also to be no defence in an indictment for extortion, State v. Dickens, 2 N. C., 468 (407); nor for unlawful voting, State v. Boyett, 32 N. C., 336; State v. Hart, 51 N. C., 389; nor generally in statutory offences. State v. Presnell, 34 N. C., 103.
The defendant relies on State v. Privett, 49 N. C., 100. There the Court charged the jury that if the principal instructed his clerk not to s 11, he'would not be liable for the sale by the clerk unless such instructions had been abrogated expressly, or by a course of condubt which would tacitly amount to the same. The appeal by the defendant, of course, could not bring up for review this charge which had been made in his favor; but Nash, C. J., takes occasion to say: “The defendant has, as we think, no cause to complain of
The retailing of liquor is not a matter of natural right, and the whole subject is within the police power of the State,
The elaborate argument for the defendant is based on the fallacy that our statute requires a scienter to be proven. This would be so, if the section was abruptly cut in two. But taken as it stands, when the State has proven an illegal sale as to a, minor, the case is made out. The statute only permits the defendant to withdraw himself 'from liability by showing that the actual seller did not know that the pur
The evidence is uncontradicted that the sale was to an unmarried person who ivas a minor. No exception was made as to the charge in regard to the purchaser being unmarried, and hence we cannot pass upon a point not raised, and about which, indeed, there was no controversy. Neither the whole of the charge nor of the evidence is stated to have been sent up, only so much as is necessary to present the exceptions made.
The fact that the clerks were acquitted because it could not be determined which one sold to the minor, is a strong argument against the defendant. If the principal weré not liable for all illegal sales made under his license, he could, by having several clerks, or changing them often, easily evade punishment for illegal sales. The law looks to the responsible party — the licensee — who has been permitted to carry on the calling, and who is held for its proper exercise. He is to receive the money from the illegal sales, and he can always be identified.
The amount of supervision exercised by the defendant here is a matter in mitigation to be considered by the Court in passing judgment. It was not enough to prevent the illegal sale, and hence is not a defence.
No error.