Obrazy na stronie

a conyiction if it shows the sale or furnishing of any one of the liquors charged. “The indictment may allege, in a single count, that the defendant did as many of the forbidden things, as the pleader chooses, employing the conjunction ‘and,’ where the statute has or." and it will not be double, and it will be established at the trial by proof of any one of them.” 1 Bish. New Cr. Proc. 6. [Ed. Note.—For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, $ 271.] 5. CRIMINAL LAw—TRIAL–INSTRUCTIONS-ASSUMPTION OF FACTS. To assume in a criminal case that the testimony for the state is the truth, though such testimony be not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth and that there is no contention to the contrary, is violative of section 4334 of the Civil Code of 1895, and demands a new trial. The plea of not guilty, filed by the defendant, is a contention on his part as to every material and essential fact necessary to estab#! his guilt, and implies a denial of every such act. [Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1754.]



A conviction of a corporation for violation

of section 444 of the Penal Code of 1895 cannot be sustained, where the evidence fails to show that the delivery of the liquors was made by an agent of the company, unless it appears that such agent knowingly permitted such unlawful furnishing; and a verdict, unsupported by proof of either of these facts, is, for lack of evidence, contrary to law.

(Syllabus by the Court.)

Error from Superior Court, Gordon County; Fite, Judge.

The Southern Express Company was convicted of furnishing liquor to a minor, and it brings error. Reversed.

F. G. Du Bignon, McDaniel, Alston & Black, and G. A. Coffee, for plaintiff in error. Sam. P. Maddox, Sol. Gen., for the State.

RUSSELL, J. The Southern Express Company was presented for the offense of furnishing spirituous, malt, and intoxicating liquors to three certain minors, named in the presentment. The express company is a corporation under the laws of Georgia, and was presented as a corporation. Before arraignment the company demurred to the presentment, on the ground that the charge is set out in such a way as to word the same in the alternative, in that the charge is that the defendant did sell, give, and furnish to Wofford Cox, Cleveland Wofford, and Charlie Gresham, minors, Spirituous, malt, and intoxicating liquors. It also demurred because the description of the liquor is not sufficiently definite to put the defendant on notice of the kind of liquor which the state expects to prove was given, sold, or furnished by the defendant. It also demurred upon the ground that the defendant, as a corporation, cannot be indicted under section 444 of the Penal Code of 1895, and, further because there was no statement in the presentment as to where the defendant was incorporated. This demurrer was overruled, and exceptions pend

ente lite were properly allowed, and are presented in the bill of exceptions. The evidence developed the following state of facts: One of the three minors, in behalf of all of them, ordered Some whisky from a liquor dealer in Chattanooga, Tenn. It came by express, consigned to Wofford Cox, One of the three. Cleve Wofford paid the express charges and Wofford Cox received it. The three minors were each about 18 years of age. These minors, after its delivery, took the whisky to a pine thicket, “opened it up,” and drank it. Each of them testified that the fluid was corn whisky. This whisky was not ordered at or from the express office in Calhoun. It was ordered at Ballew's, in Calhoun, Ga. The whisky was delivered by a boy, whom the testimony showed to be from 12 to 15 years old, and who was referred to by the witnesses as “George Gardner's little boy.” It was uncontradicted that he was not employed by the defendant. He was employed by the Western Union Telegraph Company, which had an office in the same place as the express company. The agent for the Western Union Telegraph Company was also agent for the Western & Atlantic Railroad Company and for the Southern Express Company. There is conflict in the evidence as to whether the agent, Mr. Parrott, was in the office at the time of the delivery. Some witnesses testified that they did not know whether he was present, and others, including Parrott himself, swore positively that he was not present; but the only witness who testified that Parrott, the agent of the express company, was present, also testified that he (Parrott), so far as the wit. ness knew, had no knowledge of the delivery of the whisky. This witness (Cleveland Wofford) testified: “I seen Mr. Parrott in there then. I am sure about that. I don't think Mr. Parrott was up town then. At that time he was looking over some boxes and looking around for some express for SOme. body else. I don't know whether he [Parrottl was engaged with the express company's business at the time I was there or not. He was attending to some business around there in the office. I don't know what it was: looking around for some boxes, or something or another, hunting some express for some. body else, I think.” It was further in evi. dence that the young boy who delivered the whisky was not employed by the express company and received no compensation from it; and the agent testified that he was not authorized by the express company to em: ploy him or to delegate any authority to him. There was evidence that Cleveland Wofford, who paid the express charges, had scattering beard on his face. He could not recollect whether he was the one who asked for the whisky or not. There was no evidence showing that the company had knowl. edge of the contents of the jug, or knowledge of the fact that it contained intoxicating liq:

[ocr errors]

T. nor. Upon conviction the defendant made

a motion for new trial, based on Various exceptions to the charge of the court and refusals to charge as requested. The motion was overruled, and the writ of error presents for consideration the overruling of the demurrer, excepted to pendente lite, and the refusal of the new trial. We think the demurrer was properly overruled. It is well settled that the offense defined in Section 444 of the Penal Code of 1895, may be properly set out by an allegation of sile to Hlore than one minor, and sustained by proof as to any one of them. Dukes v. State, 79 Ga. 795, 4 S. E. 876. The word "give" may be treated as synonymous with "deliver,” which is the meaning of the word "furnish,” in this section; and it may, therefore, be regarded as surplusage. And it is Well settled that a corporation is included in the word “person,” used in the criminal statute. Pen, Code 1895, § 2. It is true that the doctrine of holding corporations responsible for violation of penal laws is one dereloped by gradual evolution; but it is none the less the law, and is of healthful necessity and utility, Mr. Thompson, in his work on Corporations (section 6285), uses the following language: “The rule that laws are to be construed with such strictness as to restrain the real purpose of the Legislature Where they are penal is believed to have no just principle upon which to rest, as there is no reason why a corporation should be included in the word ‘person' for the purpose of jurisdiction, and be excluded from it for the purpose of being exempted from liability to penal actions for the commission of Wrongs for which the statute law makes individuals so liable. On the contrary, such an interpretation gives to an aggregate body

of Wrongdoers an immunity from punishment which individuals do not enjoy. The Sound rule is that corporations are to be Construed as persons, when the circumstances in which they are placed are identical With those of a natural person expressly included in a statute, and where the statute can be as aptly applied to them as to corporations.” Wales v. Muscatine, 4 Iowa, 302; Stewart v. Waterloo Turn Verein, 71 Iowa, 225, 32 N. W. 275, 60 Am. Rep. 786. In South Carolina R. Co. v. McDonald, 5 Ga. &l, it is held that corporations are embrac*d in the word “person.” A corporation “is a person under the law—an artificial person, treated by the Legislature. It has a maine— a local habitation, too. It is not a citizen in *ery sense of the word, but it is an inhabit$nt. It dwells where by law it is located. Louisville, C. & C. R. Co. v. Letson, 2 How. (D. 8) 497, 11 L. Ed. 353. A corporation is a 'judicial person'—a legal entity. * * * Where the lawmaking power uses the word 'person'—where it is found in the statute book-It is to be presumed that the legal meaning is intended, and not the social or

* intended to guard against the very construction * * * that the act applies only to natural persons.” There can be no question that while, at an early period, it was supposed that a corporation could not even commit a tort, for the reason that, being created for lawful purposes and haying no power to do acts unlawful, whenever its agents or servants exceeded the charter authority they necessarily committed the act as individuals, and not as representatives of the corporation, still that view was found to be untenable, and it was found necessary to hold the corporation responsible for the torts of its servants; and for the same reason while the corporation has no arm or hands by which itself to commit a penal offense, still it can employ servants and agents whose acts are the acts of the corporation, and who can and do, in its behalf and at its behest, violate the criminal law. It is well known that freight trains are frequently run on the Sabbath day; the physical operation being the charge of the conductor and engineer and their assistants, but the actual running of the train being ordered and directed by those higher in authority and having the company's business directly in charge. The servants who operate the train might greatly prefer to observe the Sabbath as a day of rest, but to retain their situation and the good will of their employers they have no option but to obey their orders. The case of Southern Express Co. v. State, 107 Ga. 670, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146, cited by counsel for plaintiff in error, has no bearing on a case of furnishing liquor to minors. In fact, in that case the court refers to the case of Burnett v. State, 92 Ga. 474, 17 S. E. 858, and expressly distinguishes section 444, supra, from the local statute for Bartow county, then under consideration. The selling and fur. nishing of intoxicating liquors to minors is considered an exception to general rules in reference to sales. It is unlawful, without the written authority of the guardian or parent of the minor, to be the medium in any way whatsoever by which the minor may obtain intoxicants. An express company, where the delivery is not “C. O. D.,” can deliver intoxicating liquor to the consignee, because the sale was complete and is supposed to have been lawful when such liquors were delivered by the consignor to the carrier. The consignee, when of lawful age, has the right to the possession. The consignee, when a minor, has no right to buy, or by any means be supplied or furnished with, intoxicating liquors without the written authority of his parent or guardian. “It has been repeatedly held that a saloon keeper who allows an adult to buy intoxicating liquor and give it to a minor to drink in his saloon is guilty of the violation of the statute against furnishing liquor to minors.” People v. Neumann, 48 N. W. 290,

sembly, * *

ordinary meaning. * * * The General As

85 Mich. 98; State v. Munson, 25 Ohio St.


381; State v. Best, 12 S. E. 907, 108 N. C. 747. The word “furnish,” in Pen. Code 1895, § 444, has the same meaning as “deliver.” The General Assembly, in the passage of this statute, intended to make it penal for any person in any way to enable minors to have access to intoxicating liquors; and that this was the construction placed upon it by the Supreme Court is clearly shown by the decisions in Blodgett v. State, 97 Ga. 351, 23 S. E. 830, and Dixon v. State, 89 Ga. 785, 15 S. E. 684, as well as by a number of others. There is no merit in the complaint that the state failed to show that the minors did not have written authority. Where intoxicating liquors are shown to have been delivered to a minor, it is incumbent upon the defendant

to make proof that he had written authority

from the parent or guardian of such minor authorizing such sale or delivery. In view of what we have said above, there is no merit in the exceptions to the judge's charge, as taken in the first, second, and third grounds of the amended motion; nor did the judge err in charging the jury in his recharge, as follows: “It is the duty of the express company to ship liquor or anything else delivered to it to the point of destination. It is not the duty of the company to deliver liquor to minors. If the company does it through its agent, employés, or any person that they have in their employ about the building to deliver packages, if it is done by the agent or any person acting under the agent, by his direction or with his consent, delivering packages generally, if in doing that they deliver liquor to minors, then that is a violation of the law.” The errors assigned as to this instruction are that the word “delivered” is there used as synonymous with the word “furnished”; that it charges that if the delivery is by the agent, or by any person acting under the agent and by his direction or consent, and is a delivery of liquor to minors, then it is a violation of the law; and, further, that it leaves out of consideration the fact that the company must have known the character of the liquor, or the facts must have been such as to reasonably put the company upon notice of the contents of the package; and, further, that the company was presented for the of. fense described in the first paragraph of section 444, for itself selling and furnishing the liquor, whereas the charge of the court is such as to make the defendant guilty under either the first or the second clause of that section. So far as the first three objections to the charge are concerned, it is a sound presentation of the law. The fourth exception appears to us to be well taken. Section 444 of the Penal Code of 1895 “makes it an offense for one to sell or furnish spirituous liquors to a minor by himself or another. That is the act of the party himself. But where the liquor is sold or furnished to a minor by a person other than the defendant, and not by his order or direction, if he per

mit it to be done, this is a different offense under the Code. If the liquor was furnished or sold to a minor by a person other than the accused, and not under his order and direc. tion, it was his duty to prevent it from be. ing done. His failing to do so makes him liable as permitting it to be done, and he should be so charged in the indictment; but he was not so charged in this case." Johnson v. State, 83 Ga. 555, 10 S. E. 208. The exception contained in the fifth ground of the amended motion for new trial is well taken, and demands the grant of a new trial. The portion of the charge excepted to is as follows: “Now, there is no contention here that the party who delivered the liquor did not know it was liquor. Therefore it is not necessary to charge on this point. The state contends that the liquor was delivered, and there is no contention here that the party who delivered it didn't know it was whisky." This was a manifest expression on the part of the court that it had been proved that the article delivered was whisky, and that the party who delivered it knew it was whisky. Such a statement on the part of the court is forbidden by law and is reversible error. It is true that the evidence of three witnesses for the state was to the effect that it was whisky; and there is no evidence to the contrary. But the defendant's plea of not guilty put the state on proof of every material allegation in the indictment, and submitted to the jury, not only the facts testified to by witnesses, but also the credibility of each and every witness. Further, there was no evidence as to whether the party who delivered it knew or did not know that it was whisky. There was certainly no evidence that he knew it to be whisky. And, while the defendant had the right to put the state on proof of every material fact necessary to establish his guilt, it was not only illegal, but manifestly prejudicial, to state that there was no contention “that the party who delivered it didn't know it was whisky.” The state was obliged to show that it was whisky, or some like intoxicating liquor, and submitted testimony upon that subject for the consideration of the jury. The defendant had the right, under his plea of not guilty, to have the jury, and not the court, pass upon the issues of fact in the case. This court is bitterly opposed to the furnishing of liquor to minors by any means or device whatsoever, but even in trials for that offense the “dumb act” (Civ. Code 1895, $ 4334) is of force. The court should have granted a new trial, not because the corporation could not be indicted, or because its delivery of whisky would not amount to furnishing, nor upon the other grounds which have been referred to, but because of the intimation and expression of opinion on the evidence above quoted, and because the verdict is contrary to law, for lack of evidence to support it. The corporation can be guilty of furnishing liquor to a minor, but it can only be guilty because it is held responsible

for the acts of its agents, and, in case of fur

mishing liquor to a minor, for permission

given by its agent, for the sale or furnishing

of the liquors in question, There was no

evidence introduced by the state in this case which showed that the agent knew of the

delivery, consented to it, or permitted it.

The only witness who testified that the agent was present (taking his testimony to be the truth) also testified that there was nothing to attract the attention of the agent to the delivery. None of the parties interested in the whisky spoke to him, and, if present, he was absorbed in the consideration of other business. The proof was uncontradicted that the boy who delivered the whisky was not employed by the express company. If the state had shown that the agent was looking at the boy, or told the boy to deliver the whisky, or was silently standing by and made no protest when he saw the boy delivering the same, the jury might have been authorized to consider the act of the boy as the act of the agent, and then the act of the agent would have been the act of the compamy, But the state's own testimony negatives the idea that the agent either knew of, consented to, or permitted the delivery in this Case,

Judgment reversed.

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

signed by himself, stating as follows: “Enclosed find money order for $3.50, for which please send me two quarts of Montreal malt and two quarts of your best 75 cent rye.” The said Joe Davis was then and there at Nashville, Berrien county, Ga. W. D. Newsome was then and there a licensed liquor dealer in the city of Waldosta, Lowndes county, Ga. The said W. D. Newsome, upon receipt of said order, immediately sent by express, via Southern Express Company, to the said Joe Davis, at Nashville, Ga., the whiskies and liquors ordered, and the Southern Express Company received the same at Valdosta, in Lowndes county Ga., and transported the same to Nashville, Ga., in Berrien county, where R. L. Ferguson, as the agent of the Southern Express Company at Nashville, Ga., Berrien county, delivered the same then and there to the said Joe Davis. The said Joe Davis was a minor under 21 years of age. The liquors as aforesaid, as stated, were delivered to the Southern Express Company in Lowndes county, Ga., by the said W. D. Newsome, and the Southern Express Company, a Common carrier, conveyed the same, as stated, to Nashville, Ga., the express being paid by the minor, who was the consignee (Joe Davis), at Nashville, Ga.; the said W. D. Newsome not having first obtained the written authority, from either a parent or guardian of the said Joe Davis, to sell or furnish any liquors to the said Joe Davis. That said W. D. Newsome, after receiving the order signed by Joe Davis as aforesaid, without inquiry as to whether the said Joe Davis was or was not a minor, shipped the liquor as stated. The particular whisky shipped had not, at the time the order was received, been separated from the general stock of the said W. D. Newsome in his saloon, at Valdosta, Lowndes county, Ga., but was separated therefrom after the receipt of said order and its acceptance, and delivered to the carrier, the Southern Express Company, as aforesaid. The liquors furnished were intoxicating. The delivery to the carrier, as stated, was for the purpose of shipment under the usual contract specifying its conveyance and delivery to the consignee at Nashville, Berrien county, Ga. It was contemplated by the parties, at the time the order was sent and received and accepted, that the whisky was to be sent by express, as stated.” He was adjudged guilty, and excepted.

Cranford & Wilcox, for plaintiff in error. W. E. Thomas, Sol. Gen., for the State.

POWELL, J. (after stating the foregoing facts). Pen. Code 1895, $ 444, makes it criminal for “any person, by himself or another,” to “sell, or cause to be sold, or furnished,” to any minor, any spirituous, malt, or intoxicating liquors, unless such person shall first obtain the written consent of the minor's parent or guardian. In this state, as in most of the states, this statute has been broadly and liberally construed in favor of the protection thus afforded against the obtaining of intoxicating liquors by minors. The word “sell,” appearing in the statute, is, of course, not to be taken in the strict technical sense of the word. One of the elements contained in the definition of a “sale,” as this term is ordinarily used in laws and court language, is competent parties. A minor not being a competent party to obtain liquor, there can be no sale to him in the technical sense. The statute, therefore, makes punishable those acts which would amount to a Sale of the liquors if the minor were a competent contracting party. If a liquor dealer in county. A receive an order for whisky from a lawful customer in county B, and from his store in county A ship the whisky by a common carrier to the purchaser in county B, a sale has taken place in county A. If, under the same circumstances, the order be sent by an unlawful customer—a minor—and the goods be shipped, no sale, in the strict sense of the word, has taken place, but the quasi sale contemplated by Pen. Code 1895, § 444, has been consummated at the place where the delivery was made to the carrier; hence the liquor dealer may be indicted in that County. But the sale or quasi sale is not the only offense under this statute. To furnish liquors or cause them to be furnished is also criminal. This offense is not complete until the minor receives possession of the liquors. If a minor in De Kalb county send a private person into Fulton county to buy liquor for him, and this private person disclose to the dealer the fact that he desires the liquor for a minor, and the dealer send the liquor by this private person, who delivers it to the minor in De Kalb county, the dealer may be indicted in Fulton county for the quasi sale. Both the dealer and the private person through whom the delivery was effectuated may be indicted in De Kalb county for furnishing the liquor and causing it to be furnished. Likewise where delivery is made through a common carrier. The purpose, the unbroken judicial construction, in fact, the very language, of this statute, distinguishes the case at bar from the line of cases holding that in ordinary sales of intoxicating liquors, as well as of other commodities, the sale is complete at the place where delivery is made to the carrier. Those cases (e. g., Dunn v. State, S2 Ga. 27, 8 S. E. 806, 3 L. R. A. 199; Southern Express Co. v. State, 107 Ga. 670, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146, and cases cited therein) all proceed upon the theory that the common carrier is the agent of the consignee to receive for him the goods and transport them, and therefore delivery to the carrier is delivery to the consignee. Watkins v. Paine, 57 Ga, 50. If the sale be lawful at the place where the goods are tendered to the carrier, it cannot refuse them. It is a public agent for such purposes. But the carrier is not a pub


lic agent for unlawful purposes. If it accepts for transportation liquor consigned from a dealer to a minor, it carries it, not as the minor's property, for the law will not let the title pass, but as the dealer's. Burnett v. State, 92 Ga. 474, 17 S. E. S.S.; So. Ex. Co. v. State, 107 Ga. 674, 33 S. E. 637, 46 L. R. A. 417, 73 Am. St. Rep. 146. The carrier cannot by contract, express or implied, nor by virtue of any public duty, become or agree to become the minor's agent to accept for him delivery of a thing which the law forbids that he should receive. This principle existing in the law of agency is too universally recognized to require citation of authority. The two cases just cited above make it plain that there is no legal duty on the carrier to receive and transport the liquor in such cases; that, on the contrary, the law forbids it; and, if the carrier delivers the liquor to the minor, he and the dealer are both principals in the crime of furnishing and causing to be furnished liquor to a minor. So. Ex. Co. v. State, 1 Ga. App: 700, 58 S. E. 67. Since the crime of furnishing becomes complete in the county where the minor actually obtains personal possession of the liquor, venue may be laid there. 2. That a defendant who furnishes liquor to a minor happens to be ignorant of the minority is no excuse. Most states recognize no exceptions to this rule. 17 Am. & Eng. Enc. Law (20 Ed.) 335. Georgia is somewhat more liberal, and allows the accused to show, in defense, that after honest inquiry and the exercise of due diligence he bona fide believed, and was justified in believing, that the person to whom the liquor was furnished was at the time of full age. Certainly a dealer who fills an order without inquiry is not within the protection of this exception. Loeb v. State, 75 Ga. 258; Harkey v. State, 89 Ga. 478, 15 S. E. 552; Burnett v. State, 92 Ga. 474, 17 S. E. 858; Blodgett v. State, 97 Ga. 351, 23 S. E. 830. Judgment affirmed.

[ocr errors][merged small][merged small]

1. Counties—OFFICERS AND AGENTs—PoWERS —IMPLIED Pow ERs. Where, by statute, jurisdiction over a subject-matter is conferred upon county authorities, and therein the power to do certain things is expressed, the further power to contract in regard to that subject-matter is to be implied; and a part of this implicit power is the author: ity to use discretion as to the details of such contracts, subject only to the limitations imposed by the statutes or public policy of the state. 2. BRIDGEs—ESTABLISHMENT BY PUBLIC AUTHORITIES. . There is nothing in the statutes or public policy of this state which prohibits the proper county authorities from making a contract with the owner of a mill site, near which a public highway, including a bridge, is to be erected, whereby the mill owner deeds to the county the right of way for the highway and contributes

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][graphic]
« PoprzedniaDalej »