Wortham v. State

Terral, J.,

delivered-the opinion of the court.

The appellant was indicted in the circuit court of Harrison county for the unlawful sale of whisky, and convicted. The facts were agreed to be that “Charles Thames met the defendant in McHenry, in Harrison county, and asked him if he could get him a pint of whisky, and defendant told him that he could, and thereupon took fifty cents and went off and bought a pint of whisky from another person, not authorized by law to sell same, -paying therefor the fifty cents given him by Thames, and that said liquor, so bought' and delivered to Thames, was not the property of defendant, who was not interested therein, but was the sole property of the person from whom defendant bought same.” This instruction was given to the jury on the part of the state: “The court instructs the jury that, if they believe the facts set out in the agreed statement, beyond a reasonable doubt, they will find defendant guilty.” This conviction is assailed upon the grounds: (1) *213Because the evidence, it is said, will not support a conviction; (2) the instruction is said, to be erroneous.

1. The case here made by the agreed statement of facts is substantially the same as Wiley v. State, 74 Miss., 727 (21 So., 797). In every case there is a seller as well as a buyer, and a delivery of the whisky sold is an essential and necessary act of the seller to constitute criminality. The seller here, whoever he was, took the hand of Wortham to make a delivery of the whisky to Thames, and Wortham, whatever his intention was, and however his connection with the matter arose, became a participant with the owner of the whisky in the sale of it to Thames. The essential fact of delivery was the sole act of Wortham. And as in misdemeanors all persons who participate in doing any of the acts constituting elements of crime are, in law, guilty as principals, Wortham may not deny responsibility for his part in this transaction. Wortham was not tbe agent of Thames in the purchase of the whisky. There are no agents in the violation of law. Whatever acts, being the elements of ' crime, are done by any one, are done by such one as principal, and not as agent. No one of the participants in crime is guilty because of a relation of agency to any of the other persons, but each is guilty because his act is a necessary part of the whole crime. Wortham was not the agent of Thames, because agency is not predicable of crime; but his act, in respect to both the seller and Thames, is that of a principal actor. In respect to what was done at the instance of Thames, there is no culpability; but in respect to the delivery of the whisky for the seller to Thames the act was that of Wortham as a principal.

2. There is no error in the instruction. That form of instruction in liquor cases is approved in Beck v. State, 69 Miss., 217 (13 So., 835). Where the act denounced by law is punishable without regard to the spirit, whether benevolent or otherwise, in which the act was done, the doing of the act is a ci’ime, and it is proper to so inform the jury.

Affirmed.