The opinion of the court was delivered by
HORTON, C. J.:The question in this ease is, whether the purchaser of liquor which is sold in violation of law is guilty of unlawfully selling the same; that is, whether, by purchasing, he counsels, aids or abets in the unlawful sale, and may be convicted in the same manner as if he were the principal. The precedents are against the conviction of the purchaser, although he knows that the circumstances will render the sale of the liquor illegal. (1 Bish. Cr. Law, § 657; Black, Intox. Liq., § 381, and the cases cited; The State v. Rand, 51 N. H. 361; Commonwealth v. Willard, 22 Pick. 476.) In the last case, Chief Justice Shaw observed:
“We know of no case where an act which, previously to the statute, was lawful or indifferent, is prohibited under a small specific penalty, and where the soliciting or inducing another to do the act by which he may incur the penalty, is held to be itself punishable. Such a case perhaps may arise, under peculiar circumstances, in which the principle of law, which in itself is a highly salutary one, will apply; but the court are all of opinion that it does not apply to the case of one who, by purchasing spirituous liquor of an unlicensed person, does, as far as that act extends, induce that other to sell in violation of the statute.”
In that case, a distinction is drawn between cases which are usually considered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent, than as they are restrained by positive law.
The State v. Bonner, 2 Head, 136, is cited in support of the instruction of the court. In that case, it was held to be *104an offense for a white man to purchase liquor from a slave without a written permit from his master; but that case has been distinguished in Harney v. The State, 8 Lea (Tenn.), 113, where it is held that a person who buys liquor sold contrary to the provisions of the statute is not equally as guilty as the seller. It is insisted, however, that as the sale of intoxicating liquors is forbidden in this state by the constitution, excepting for medical, scientific and mechanical purposes, the purchaser is a participant with the seller in the offense.
Notwithstanding' the amendment to the constitution prohibiting the manufacture and sale of intoxicating liquors, the offense of selling intoxicating liquors in violation of the constitution and the statute is an offense of the class considered mala prohibita, and is not of the class mala in se. In Iowa, which has adopted a statute similar to our own, prohibiting the sale of intoxicating liquors, it was recently said by the supreme court of that state:
“As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms. So far from this being so, the implication is clearly the other way. The prohibitory statute does not regard the purchaser an aider and abetter in any criminal act.” (Wakeman v. Chambers, 69 Iowa, 169.)
It is further insisted, as the statute expressly provides that the person to whom intoxicating liquors are unlawfully sold shall be a competent witness, and that no person shall be excused from testifying touching any offense committed against the statute tending to criminate himself, but that such testimony shall in no case be used against him, that these provisions tend to sustain the argument that a purchaser is equally guilty with the seller. We think otherwise. The first provision adopts the ruling of the courts, that the purchaser of intoxicating liquors cannot excuse himself from testifying on the ground that his testimony would tend to criminate himself. The other provision relates to members or shareholders *105of clubs or associations where intoxicating liquors are kept for the purpose of use or sale as a beverage, making every person directly or indirectly keeping or maintaining such a club or association alike guilty. (Laws of 1881, ch. 128, §§ 16-21; Gen. Stat. of 1889, ¶¶ 2536-2540.)
Finally, it is insisted that the defendant, upon his own testimony, is guilty of taking or receiving an order for intoxicating liquors, under § 12, chapter 149, Laws of 1885. (Gen. Stat. of 1889, ¶ 2550.) The testimony does not show that the defendant took or received any order for intoxicating liquor, within the provisions of the statute. At most, according to his testimony, he was a purchaser of liquor for himself, and acted as the agent or intermediary of his associates or the other buyers. If the defendant had sold the liquor himself, or if he had acted as agent or clerk for the seller, upon proper instructions to the jury, he could have been convicted. If this court should determine that, in prosecutions against parties for the unlawful sale of intoxicating liquors, the purchaser is equally guilty with the seller, the statute would be much more difficult of enforcement. Most of the convictions in prosecutions of this kind are sustained by the testimony of purchasers, and if purchasers and sellers are equally guilty, prosecutions will be less successful than heretofore, even if the testimony of the purchasers cannot be used against them. The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring.