Dissenting Opinion.
Jordan, J.I emphatically dissent from so much of the majority opinion in this case as upholds the doctrine as stated in Black, Intox. Liq. §370, namely: “It is held to be no defense to an indictment against the principal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and tona fide ordei’s. ’ ’
The iixtroductory part of said section just quoted from is not set out in the majority opinion. If it had been, it would have fully disclosed that the author is dealing with statutes of sister states which have changed or modified the common-law rule in respect to the criminal responsibility of the principal for the acts of his agent. The section begins as follows: “It has been already mentioned that statutes enacted in several of the states have modified the common-law rule as to the criminal responsibility of a master for the acts of his servant or agent, so as to make him answerable in eases ■where he could not be held to liability without such statutory provisions.” Continuing the author says: “Under these laws [referring to the statutes previously mentioned], it is held to be no defense to an indictment against the prin*552cipal that the unlawful act was done without his knowledge or consent, or without his authority, or in his absence, or even that it was done in contravention of his express and bona -fide orders.”
In this State, however, no such statutes exist as those referred to in the section just quoted. The general rule of the criminal law is that no person shall be held criminally responsible for the act of another, unless he counsels, commands, aids or abets therein, or procures its commission. In criminal offenses under the statutes of this State which are classed as misdemeanors — to which class the one at bar belongs — no person connected with the commission of such grade of offenses is regarded or held to be an accessory, but if guilty at all, his guilt is that of a principal offender. The rule, recognized and well settled in this jurisdiction, is that a person charged with having committed a criminal offense cannot be convicted unless it be proved on the trial that he either did the unlawful act charged in the indictment or affidavit, as the ease may be, or that it was done by his authority or consent, express or implied. This principle has been applied and enforced in numerous decisions of this court, arising out of alleged violations of statutes prohibiting the sales of intoxicating liquors. See Pennybaker v. State (1831), 2 Blackf. 484; Hipp v. State (1839), 5 Blackf. 149, 33 Am. Dec. 463; Wetzler v. State (1862), 18 Ind. 35; Lauer v. State (1865), 24 Ind. 131; Anderson v. State (1872), 39 Ind. 553; Hanson v. State (1873), 43 Ind. 550; O’Leary v. State (1873), 44 Ind. 91; Thompson v. State (1874), 45 Ind. 495; Wreidt v. State (1874), 48 Ind. 579; Lathrope v. State (1875), 51 Ind. 192. See, also, Wilson v. State (1898), 19 Ind. App. 389; Rosenbaum v. State (1900), 24 Ind. App. 510.
In the case of Pennybaker v. State, supra, the evidence disclosed that the wife of the accused made the unlawful sale of the intoxicating liquor in his absence and without his authority. It was held that, under the circumstances, the conviction could not be sustained.
*553In the case of Hipp v. State, supra, the sale of the liquor was made by the defendant’s bartender, who had been left in charge of the tavern. The trial court charged the jury that defendant was guilty in like manner as though the sale had been made by himself. This charge the court held to be erroneous, and held that defendant was not criminally liable for the act of his barkeeper.
In the case of Wetzler v. State, supra, the evidence showed that the liquor was sold in defendant’s barroom by his barkeeper, but there was no evidence tending to show that defendant was present when the sale was made or had any knowledge whatever of the selling when it was done. The court in that case held that the evidence was insufficient to sustain the conviction.
In the case of Lauer v. State, supra, appellant was prosecuted for selling intoxicating liquors to a minor. It appeared on the trial that the sale in question was made by his barkeeper without the knowledge or consent of appellant, either express or implied. It was held in that appeal that, under the facts, the conviction could not be sustained. In the course of the opinion Frazer, J., said: “We must not hold men responsible for crimes committed by others, without some proof that they either procured, counseled or advised their perpetration. ’ ’
In the case of O’Leary v. State, supra, the offense charged consisted of the sale of liquor to a person in the habit of becoming intoxicated. It was shown that the sale was by a barkeeper of appellant, in his absence, without his knowledge or consent, and against his express directions. It was held that under the facts the conviction could not be sustained.
The case of Thompson v. State, supra, arose out of the sale of liquor to a minor. The evidence disclosed that at the time the sale was made defendant was not within the State; that the liquor was sold by his barkeeper, and that it was. unauthorized by the accused. It was held that he could not be convicted.
*554The case of Hanson v. State, supra, was a prosecution for selling to a minor, in violation of section six of the liquor law of 1873. (Acts 1873 p. 151.) This section declared that it “shall be unlawful for any person, by himself, or agent, to sell, barter, or give intoxicating liquors to any minor,” etc. In that case the bartender of defendant made the unlawful sale in his absence, and without his knowledge or consent. It was held that the conviction could not be upheld. This court in the course of its opinion by Downey, C. J., said: “It is doubtful whether the fact that the section in question expressly makes a sale by the agent criminal, as well as one made by the defendant himself, creates any material difference between this section and the sections in former laws on the subject, since it was held under such former laws that the vendor might be convicted, if it appeared that the sale was made by him through his agent, it appearing that the particular sale was authorized by him. One who sells intoxicating liquor by his agent, duly authorized thereto, must be regarded as selling it himself. Molihan v. State [1868], 30 Ind. 266.”
The prosecution at bar, however, is founded upon section nine and one-half of the Nicholson law (Acts 1895 p. 248, §8334 Burns 1908). This section declares that “it shall be unlawful for any spirituous, vinous or malt liquors to be sold or given away in any drug store in any quantity less than a quart at a time, except upon the written prescription of a reputable practicing physician.”
It will be noted that this section, unlike section six of the act of 1873, supra, contains no declaration about its being unlawful for the liquor to be sold at a drug store by the proprietor thereof or his agent. The gist of the offense under §8334, supra, is the selling of intoxicating liquor in less quantity than a quart at a time, without the written prescription of a reputable physician.
The rule to which we have referred, as affirmed and enforced by the decisions of our own court, is applied and enforced by the great trend of decisions of the higher courts of *555sister states. See State v. Hayes (1885), 67 Iowa 27, 24 N. W. 575; People v. Metzger (1893), 95 Mich. 121, 54 N. W. 639; Commonwealth v. Putnam (1855), 4 Gray (Mass.) 16; Commonwealth v. Wachendorf (1886), 141 Mass. 270, 4 N. E. 817; State v. Mahoney (1876), 23 Minn. 181; Commonwealth v. Stevens (1891), 153 Mass. 421, 26 N. E. 992, 11 L. R. A. 357, 25 Am. St. 647; State v. McGrath (1880), 73 Mo. 181; Seibert v. State (1866), 40 Ala. 60; State v. Baker (1880), 71 Mo. 475; Commonwealth v. Johnston (1896), 2 Pa. Super. 317; Anderson v. State (1872), 22 Ohio St. 305; Hood v. State (1896), 35 Tex. Crim. 585, 34 S. W. 935; Neideiser v. State (1873), 6 Baxt. (Tenn.) 499; State v. Doyle (1886), 15 R. I. 325, 4 Atl. 764.
The case of Commonwealth v. Putnam, supra, was a prosecution of the principal for an unlawful sale of liquor made by his clerk or agent. It was held that the prosecution against the employer could not be sustained. The court in that appeal said: "The fact that the person selling was a clerk of the defendant, and that the defendant knew of the sale, was not sufficient. lie might have had knowledge and dissented, or forbidden it. There must be evidence from which the jury can infer the assent of the defendant.”
While it is true that in the case of Groff v. State (1909), 171 Ind. 547, a doubt is expressed in respect to the correctness of some things said by this court in cases arising out of the unlawful sales of intoxicating liquors made by servants or agents of their employer in his absence, and without his authority, nevertheless these cases were in no manner modified or overruled, the court only stating that it was not inclined to extend the principle therein announced in pure food cases.
The evidence in the case shows that appellant is a practicing physician and a duly licensed pharmacist or druggist; that he was the proprietor of a drug store situated in the town of Chrisney, Spencer county, Indiana; that AYlliam P. Smoot was in his employ as a clerk in his drug store; that at the *556time of the alleged sale of the liquor in question appellant had, as a part of his stock of drugs, intoxicating liquors for sale, presumably for medicinal and scientific purposes. It cannot be assumed that he kept such liquors to be sold in violation of law.
The sale of the liquor out of which this prosecution arises was made by Smoot, the clerk, in the absence of appellant. The sale was made to Willis E. Clark, a detective in the employ of the anti-saloon league, who went to appellant’s drug store to purchase whisky for the sole purpose of securing a prosecution.
In view of the decisions of this court, to which we have herein referred, holding that the conviction of a person charged with having made an unlawful sale of intoxicating liquor eannot be sustained where the unlawful sale was made by his agent or servant, without his authority or consent, it would be unreasonable to suppose that the legislature, in the absence of any declaration to the contrary, intended that a different interpretation should be accorded to the present liquor laws enacted since these decisions were given.
The case of Groff v. State, supra, does not support the majority holding. It is better that well-settled rules of our criminal law be inflexibly maintained, instead of bending or modifying them to sustain some particular ease. It is the wrong decision of to-day which becomes the bad precedent of to-morrow.