Opinion
Argued May 5, 1914
Decided June 2, 1914
Edward E. Conlon, District Attorney ( H.J. Hewitt of counsel), for appellant.
C.L. Andrus for respondent.
The defendant was indicted for violating subdivision K of section 30 of the Liquor Tax Law (Cons. Laws, ch. 34; Laws of 1909, ch. 39) under which it is a misdemeanor "to solicit, accept or procure in a town in which a liquor tax certificate is prohibited" pursuant to the local option provision of the statute, "an order to deliver or send to another, or for another, liquor in any quantity, where the person for whom such liquor is procured resides in any such town." The indictment alleged that the defendant was a resident and citizen of Kingston in Ulster county and set forth facts showing that the town of Andes in the county of Delaware was a town in which a liquor tax certificate was prohibited. It further charged that notwithstanding these facts the defendant on or about the 5th day of March, 1910, willfully and unlawfully solicited, accepted and procured in the said town of Andes an order to deliver or send to one J.D. Frisbee one gallon of whisky, where the person for whom such liquor, to wit, J.D. Frisbee, was procured, resided in said town of Andes at the time the said defendant solicited and procured such order. There was a further allegation to the effect that the defendant delivered to the said Frisbee in pursuance of the order so solicited one gallon of whisky for which he paid the defendant two dollars and fifty cents.
Upon the trial the defendant was convicted and the County Court imposed a fine of $200, deferring "the imprisonment portion of the sentence until a future time to be brought up upon motion of the District Attorney." The Appellate Division has reversed this judgment and dismissed the indictment.
There was no substantial controversy as to the facts. It appeared without dispute that the sale of the liquor in question to J.D. Frisbee of Andes, a town in which liquor tax certificates were prohibited, was made through the agency of a circular letter and pricelists bearing the name of the defendant, a liquor dealer at Kingston, and sent through the mail to Frisbee from his establishment. The mail department of the defendant's business was conducted by his son, to whom he had given positive instructions not to send circulars soliciting custom into no-license towns. Like instructions had been given by the son to his subordinates in the store. It did not appear how they came to be disregarded in this particular instance by the stenographer in the mailing department who admitted sending the circulars to Frisbee; she simply had no recollection about it. The defendant testified that he did not know any circular was sent to J.D. Frisbee in the town of Andes of any character whatever or that any circular was sent to any person in the town of Andes. He relied upon his son to follow his instructions, and he had no knowledge or information of any transaction with J.D. Frisbee until this indictment was found.
No attempt was made to controvert the defendant's denial of any personal participation in the transaction. The court held that it was not necessary to prove that he knew anything about it. This appears from the following request to charge and the ruling of the learned county judge thereon:
"Defendant's Counsel: We ask your Honor to charge the jury that unless they find the acts complained of were committed by the instruction or authority of the defendant and with his knowledge, the defendant should be found not guilty.
"The Court: I decline to so charge. The defendant is liable for the acts of his duly authorized servants, agents or employees.
"Defendant excepts."
The case has provoked unusual diversity of opinion in the Appellate Division. The presiding justice construes the prohibition in the statute as applicable only to cases where the contemplated sale is to one person for the benefit of another person and holds that it is no offense against the law to solicit a resident of a no-license town to purchase liquor for himself. Two of his associates who concur with him for reversal place their vote solely upon the ground that the statute contemplates the personal presence of the offender in the no-license town when and where he solicits the purchase. The other members of the court agree with the construction placed upon the statute by the county judge and vote for affirmance.
The conclusions which I have reached do not precisely and entirely accord with any of the views expressed in the courts below. As subdivision K of section 30 of the Liquor Tax Law is an important provision of that statute, the operation of which is likely to be frequently invoked, I will state these conclusions categorically for the guidance of trial courts in the future if my views shall meet with the concurrence of my associates.
(1) Personal guilt on the part of the offender is necessary to the maintenance of a prosecution under subdivision K of section 30 of the Liquor Tax Law. The defendant must have committed the offense himself or must personally have authorized another to commit it. The case is not like that where a statute requires a particular thing to be done and declares the failure to do it a criminal offense. There an employer may sometimes be criminally chargeable with the consequences of an act on the part of his servants although he expressly imposed upon them the duty of obedience to the law. Such a case was Commonwealth v. Kelley ( 140 Mass. 441), where the defendant was convicted of violating a statutory prohibition against screening his liquor store although the illegal act was committed by his bartender in violation of his express instructions that an unobstructed view of the premises should be at all times maintained. The doctrine applied in that and similar cases is based upon the assumed intent of the legislature to make the specific act or conduct punishable, irrespective of the defendant's motive or intent. ( People v. Werner, 174 N.Y. 132.) Here, however, the prohibition is directed against personal conduct and an intent to do the prohibited act is an essential element of the crime. It was, therefore, error for the learned county judge to refuse to instruct the jury that they should acquit unless they found that the acts complained of were committed with the authority and knowledge of the defendant.
(2) Subdivision K of section 30 of the Liquor Tax Law contemplates the personal presence of the defendant or his agent in the no-license town when the purchase of the liquor is solicited. There is nothing in the language of the statute to indicate that the legislature intended such an extraordinary innovation in the criminal law as would arise from the creation of an offense which would render a person liable as a criminal in a town which he might never have visited, simply because he mailed a liquor pricelist from a distant point in another county to a possible purchaser. Such a construction, as is aptly suggested in one of the opinions of the Appellate Division, would make it a crime for any of the large grocery establishments in the city of New York to send its catalogues containing a pricelist of liquors for sale to their correspondents residing in no-license towns.
(3) I am unable, however, to agree with the learned presiding justice of the Appellate Division that in order to constitute a violation of the statute it must appear that the purchase was to be for the benefit of some person other than the actual purchaser. I think the word "another" is used in contradistinction to the seller. While there are some grammatical objections to this construction, there are equally cogent objections of the same nature to the other; and it seems to me that it would be narrowing the meaning too much to exclude a case of soliciting custom from one who designs purchasing the liquor for his own use. The solicitation of any resident of a no-license town is forbidden, whether the liquor is to be consumed by him or by some other resident of such town after he gets it.
If the Appellate Division had merely reversed the judgment in this case, and had proceeded no further, the order would not have been reviewable in this court in the absence of a statement in the body thereof that the court had reviewed the facts and was satisfied with the judgment so far as the facts were concerned. ( People v. O'Brien, 164 N.Y. 57.) The Appellate Division, however, has not only reversed the judgment but it has also dismissed the indictment, thus finally disposing of the prosecution. This course was taken, we presume, upon the ground that it was manifestly impossible upon another trial to establish an essential element of the offense charged, to wit, the presence of the defendant in the town of Andes and the act of solicitation by him personally in that town. The district attorney appears to have made no suggestion that he could strengthen the case in that respect nor does he make any such suggestion in this court. The case, therefore, was one of reversal in which it was neither necessary nor proper to order a new trial. (Code Crim. Pro. § 543.) Under these circumstances the dismissal of the indictment seems to have been warranted.
The order of the Appellate Division should be affirmed.
WERNER, HISCOCK, COLLIN, CUDDEBACK, MILLER and CARDOZO, JJ., concur.
Order affirmed.