crimes committed by others, without some proof that they either procured, counseled, or advised their perpetration. We know full well that in this class of cases the guilty may sometimes escape for a failure of this proof, and that it may sometimes be impossible to produce it in cases where it exists. But these considerations are also applicable to every other class of crimes. The guilty frequently go unpunished for lack of proof, but this is better than that the innocent should be punished as well as the guilty. The law upon this subject is settled. It was ruled in this State as early as 1831, in Pennybaker v. State,1 and this was confirmed in Hipp v. State. If there had been evidence that on other occasions the barkeeper had sold to infants, with the defendant's knowledge, and that the latter made no objection, or still continued him in his employ, and the jury had inferred therefrom that he did so by the defendant's authority, we would not be authorized to interfere. But there was no such evidence in these cases.

"The barkeeper was asked on cross-examination, if he did not frequently go into the saloon on Sunday, and sell liquor there. The defendant's objection to this question was overruled, and he excepted. The answer was that for the purpose of reaching another room, to which access could be had only through the saloon, he did frequently go into the saloon on the Sabbath, but did not frequently sell liquor on that day. The defendant urges that the evidence was irrelevant, and tended to create prejudice against him. The answer to the question could not, we think, have that effect, as it was in the negative. Had it been in the affirmative, and followed by evidence that the defendant knew that such was his barkeeper's frequent practice, and permitted it, we think it would have tended to show that the instructions given him, not to sell liquor in violation of law, were not given to be obeyed, and were intended merely for use in evidence to avoid just liability. The nature of the answer given to the question put, probably furnished the reason which induced the prosecuting attorney to desist from further search in that direction.

"The judgments are reversed, and the cause remanded for new trials.”

In Gaiocchio v. State,2 HURT, J., said: "The defendant was convicted upon an indictment charging him with the sale of whisky without turning the crank of the register, he being a liquor dealer. There was no evidence tending in the remotest degree to prove that appellant sold the whisky; nor was there any attempt to prove that he authorized the sale in any way, directly or indirectly, or assented thereto, or knowingly participated in the profits of the transaction. The sale being made by his bartender, the court below charged the jury upon that fact as follows: 'You are further instructed that, if you find that the barkeeper of Gaiocchio sold the said whisky to said Curtis, and failed to turn the crank of the said register, that said Gaiocchio (defendant) is guilty as if he had sold the whisky himself and failed to turn the crank.' To this charge the defendant's counsel excepted in almost every way known to the law, and reserved the point by bill.

"The rule, we think, is this: If the dealer authorized the sale in any way, directly or indirectly, or assented thereto, or knowingly participated in the profits, he would be guilty.

1 2 Blackf. 484.

2 5 Blackf. 149.

39 Tex. (App.) 387 (1880).

4 Bish. Cr. L. (5th ed.) secs. 218, 221, 628, 634; Berns v. State, 19 Conn. 398; Common

wealth v. Nichols, 10 Metc. 259; State v Bergman, 2 Nott & M. 34, note; State v Buchles, 1 Rice, 145; Lanier v. State, 14 Ind. 131; Whart. Cr. L., 696, and note.

"We do not think that it is necessary to seek light beyond the act creating the offense. This, to our minds, settles the question. It reads as follows: 'That if any liquor dealer, his clerk, agent, or employe, shall, on the sale, barter, or giving away of any vinous, spirituous, or malt liquors, fail to turn the crank of the proper register, as hereinbefore required, the person so offending, for each failure, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars and not more than one hundred and fifty dollars.' This act seeks to punish the person offending, not by reason of the fact that he is the dealer, but by reason of the selling, etc., and failing to turn the crank. The State must prove that the defendant sold, bartered, or gave away the whisky, etc., and failed to turn the crank, or that some other person is guilty, and the defendant authorized, directly or indirectly, the sale, or assented to the same, or knowingly participated in the profits arising therefrom; but this act does not hold him guilty simply upon the ground that he is the dealer. To us such a doctrine would be monstrous. The defendant's property, and, in default of that, his liberty, would be placed in the hands of his bartender. In one day (each sale, barter, or giving away being a separate offense) the bartender could bankrupt his principal.

"The defendant not only excepted to the charge of the court on this point, but asked the proper charges, which were refused; to which the defendant excepted, and reserved his bill. We are of the opinion that the court below erred in the charge, and the refusal to give the charges asked by defendant was another error growing out of the first. From the record it appears that the defendant was tried without plea; nor does it appear that he stood mute. There being no plea, there was no issue to be determined; hence there was no trial. For the above errors, the judgment is reversed and the cause remanded.

"Reversed and remanded."

§ 84. Same. - Hanson v. State. -In Hanson v. State,1 H. was indicted under a statute making it unlawful for "any person by himself or agent" to sell intoxicating liquor to a minor. The barkeeper in charge of H.'s saloon in the absence and without the knowledge of H. sold liquor to a minor. Held, that A. was not liable to conviction under the statute.

DOWNEY, C. J. This was an indictment against the appellant, charging that on the 7th day of June, 1873, at, etc., he did unlawfully sell to Edward Coval, who was then and there a person under the age of twenty-one years, one pint of intoxicating liquors, contrary, etc. On arraignment, the defendant pleaded not guilty. The issue was tried by the court, and there was a finding against the defendant. He moved for a new trial, on account of the insufficiency of the evidence. His motion was overruled, and sentence was pronounced against him. The error assigned, is, among others the overruling of the motion for a new trial. The sixth section of the act relating to intoxicating liquors, is as follows: "It shall be unlawful for any person by himself, or agent, to sell, barter, or give intoxicating liquors to any minor, or to any person intoxicated, or to any person who is in the habit of getting intoxicated." By the fourteenth section of the act, the punishment for violating the sixth section of the act is a fine of not less than ten nor more than fifty dollars, or imprisonment in the county jail not less than ten nor more than thirty days.

43 Ind. 550 (1873).

1 DEFENCES.

18

2 Acts 1873, p. 154.

The evidence in the case that we are considering, which was that of the person who purchased the liquor, shows that he was under twenty-one years of age at the time of the trial; that on the 7th day of June, 1873, in Marion County, Indiana, and in the city of Indianapolis, he went into the saloon of the defendant, where liquors were sold, with two other persons who were adults, and requested of the defendant's barkeeper and agent, in the absence of the defendant, to furnish him a cigar, and the other two persons whisky; that the cigars and whisky were furnished as requested; that the two persons with him drunk the whisky so furnished, but he did not drink any of it, or any other intoxicating liquor, but paid the defendant's bartender for the cigar which he smoked, and for the whisky drank by the other two persons.

It is claimed by counsel for the appellant, that this evidence is insufficient in two essential particulars: 1st, that the sale was made in the absence of the appellant, and, so far as the evidence shows, without his [knowledge; and 2d, that the witness did not purchase any intoxicating liquor to drink himself, which was essential to a conviction.

Perhaps it may be fairly inferred from the evidence that the appellant had a license or permit to sell liquors. It is shown that the place was a saloon where liquors were sold, and there was a barkeeper there. Assuming, then, that the defendant was lawfully engaged in the business of retailing intoxicating liquors, that the bartender was his agent, and in the absence, and without the knowledge of the defendant, sold the liquor to the minor, the first question is, does this show a violation of section 6 by the defendant? The section on which the indictment is founded makes it penal if the defendant, by himself or his agent, sold to the minor. But can we presume that the defendant, when he left the bartender in charge of the bar, made him his agent to sell to a minor, an act which would be in violation of law? There is no evidence that he authorized any such sale. If that fact can be found, it must result as an inference from the fact that the bartender was left in charge of the bar. We think that no such inference, from that fact alone, can arise. If it had been shown that the defendant had authorized and instructed his barkeeper to sell to the infant in question, or to infants generally, or if he had been present authorizing or assenting to the sale to the minor the case would be different. As the evidence does not show that the bartender was the agent of the defendant to make the sale in question, we think that, on this point in the case, it was not sufficient to justify the finding of the court. We need not decide what would have been the case had the indictment been against the barkeeper who sold the liquor. In Lauer v. the State,1 a case involving this question, it was said: "But the cases must be reversed, because there was nothing in the evidence from which the inference could be drawn that the defendant either did the acts charged in the indictment, or that they were done by his authority or consent, express or implied, or even with his knowledge. We must not hold men responsible for crimes committed by others, without some proof that they either procured, counselled, or advised their perpetration. We know full well that in this class of cases the guilty may sometimes escape for a failure of this proof, and that it may sometimes be impossible to produce it in cases where it exists. But these considerations are also applicable to every other class of crimes. The guilty frequently go unpunished for lack of proof, but this is better than that the innocent shall be punished as well as the guilty.

1 24 Ind. 131.

The law upon this subject is well settled. It was ruled in this State as early as 1881, in Pennybaker v. State, and this was confirmed in Hipp v. State.2 If there had been evidence that on other occasions the barkeeper had sold to infants, with the defendant's knowledge, and that the latter made no objection, or still continued him in his employ, and the jury had inferred therefrom that he did so by the defendant's authority, we would not be authorized to interfere." 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."

The other ground taken against the conviction in this case raises the question whether, if a minor purchase liquor, not to be drank by himself, but by others who are adults, the person selling to him is guilty of a violation of section 6. That the selling in such a case is within the letter of the section is clear enough. But the question is, is it within the mischief against which it was intended to guard? Laws are not to be literally construed when such a construction will carry them beyond the legislative intention. As it is not necessary in this case that we should decide this question, we leave it undecided. The judgment is reversed and the cause remanded, with instructions to grant a new trial.

$ 85. - Same — Anderson v. State. In Anderson v. State, A. was indicted for selling intoxicating liquor to a minor contrary to the statute. The evidence showed that the person who sold the liquor was at the time of the sale behind the counter of the saloon of A., acting as barkeeper, but did not show that such person was the agent of A. or was employed by him or that A. had any knowledge of the sale. Held, that the evidence was insufficient to support a conviction of A.

PETTIT, J. This was all the evidence in the cause: John Stryker, the person to whom the liquor was alleged to have been sold, testified: "At another time different from the 24th day of December, 1870, and within two years previous to the finding of this indictment, I bought a drink of liquor at Anderson's saloon, one door west of the tavern; I do not know who the person was that let me have the whisky; I am acquainted with defendant Anderson, also with Snyder and Joiner; it was not either Joiner or Snyder who sold me the whisky; Anderson may have been present; I did not see him; I suppose Anderson was some place about the house; the person who let me have the liquor was a heavy-set man; it was not the defendant Anderson; the liquor was bought by me in Rochville, Park County, Indiana; and I am under twenty-one years of age." Cummings, sheriff, and Gregg, deputy auditor of the county, testified that the place where the liquor was bought was the place Anderson obtained license to sell in, and that the defendant is the person who got license, and the saloon was carried on in defendant's name, and by him. Stryker recalled: "The person of whom I bought the liquor was behind the counter, acting as the barkeeper; I do not know whether he put the money paid into his pocket or into the drawer."

1 2 Blackf. 484.
25 Blackf. 149.

3 Molihan v. State, 30 Ind. 266.
+39 Ind. 553 (1872).

It was admitted by the State and the defendant that the defendant, at the time the liquor was sold, had license to retail. Stryker stated that he laid the money on the counter, but does not know whether the bartender put the money in his pocket or in the drawer. He was acting as bartender. "I was in the habit of buying liquor at defendant's house; can't say how many times."

We think there is no evidence in this case, to warrant or justify the finding and judgment in it, and on the authority of Hipp v. State,1 and Lauer v. State, the judgment must be reversed.

The evidence does not show that the person who sold the liquor was the agent of Anderson, or employed by him, or that Anderson had any knowledge of the sale.

This is not a civil case, where the mere preponderance of the evidence is to govern, but a criminal case, or a misdemeanor, in which the evidence must show guilt beyond a reasonable doubt. In this case, the evidence is such not only as would create a doubt of guilt, but it nearly conclusively shows that the defendant was not guilty.

The judgment is reversed, and the cause remanded for further proceedings. § 86. Same- People v. Utter.-In People v. Utter, A. was indicted for selling liquor on Sunday. The sale was not made by A. personally nor in his presence, but by his barkeeper. Held that to convict A. it must be shown that the sale made by the barkeeper, was participated in, connived at, or assented to by A.

The defendant was indicted for selling strong or spirituous liquors in his tavern on Sunday, he being at the time a tavern and hotel-keeper, and licensed by law to sell liquor.

The indictment charged that the offense was committed on the 18th day of January, 1863, and on other days and times, being Sunday. On the trial, it was proved, under objection by the defendant's counsel, that a witness had some liquor sold at the defendant's bar prior to November, 1862, by the defendant's bartender, but there was no evidence of any sale by the defendant in person, nor of any sale when he was present, nor that he knew of any sale of liquor at his bar or house on any Sunday.

By the Court, JAMES C. SMITH, J. The defendant, a licensed tavern keeper was indicted for selling liquors at his bar, on Sunday, contrary to the statute. On the trial the prosecutor gave evidence tending to show that on several different occasions liquor had been sold at the defendant's bar by his bartender, on Sunday, but there was no evidence of a sale by the defendant personally, or in his presence.

The court charged the jury, in substance, that if they believed the bartender had sold liquor in the defendant's tavern, on Sunday, they might convict the defendant, although he was not present nor shown to have directed or authorized the sale to be made. To this the defendant excepted.

The defendant requested the court to charge the jury that it is not sufficient to prove that liquor was sold in the defendant's house on Sunday, but that it must be shown that he did the act personally, or that it was done by his direction or with his assent.

The court refused to so charge, but charged that the defendant would not be

1 5 Blackf. 149.

2 24 Ind. 131.

44 Barb. 171 (1874).

4 Laws of 1857, ch. 628, sec. 21, vol. 2, p. 413.