Opinion
No. 14,655.
Decided October 7, 1940.
Defendant in error was found not guilty of selling intoxicating liquor to a minor.
Judgment Disapproved.
1. CRIMINAL LAW — Intoxicating Liquor — Sale to Minor. One charged with the sale of intoxicating liquor to a minor may not justify the sale on the ground that he believed the purchaser to be of lawful age.
2. Intoxicating Liquor — Sale to Minor. When making a sale of intoxicating liquor, it is incumbent upon the vendor to determine that his customer is not a minor, and when he makes a sale, on whatever evidence he may act and regardless of his good faith, he assumes the risk involved and must suffer the penalty prescribed by law in the event the purchaser is in fact under legal age.
Error to the District Court of Garfield County, Hon. John R. Clark, Judge.
Mr. FRANK DELANEY, for the people.
Mr. I. L. QUIAT, Mr. RALPH J. CUMMINGS, Mr. ALLYN COLE, for defendant in error.
THIS matter concerns a writ of error sued out by the people under the provisions of section 500, chapter 48, '35 C.S.A., C.L. 7113. Defendant in error was tried, and acquitted, on the charge of selling liquor to a minor, in violation of section 17 (b), chapter 89, '35 C.S.A., S.L., '35, p. 598, § 3, Par. (b).
[1, 2] The question is, May a licensed liquor dealer justify the sale of liquor to a minor on his belief that the purchaser was twenty-one years of age?
The court instructed the jury that if the defendant made the sale under the honest belief that the purchaser was then twenty-one years of age or older, and that defendant acted as a reasonably prudent man in so believing, "then and in that case you should find the defendant not guilty."
We think the court erred. It is incumbent on the licensed dealer to see that his customer is not within a proscribed class; proceeding otherwise, he does so at his peril. We do not perceive that our statute contemplated the exercise of good faith on the part of the licensee. On whatever evidence he may act in a given instance, and regardless of his good faith, the licensee must assume the risk involved. See McCutcheon v. People, 69 Ill. 601; 15 R.C.L. 365; Wharton's Criminal Law (11th ed.), § 1808, pp. 1998-99; 115 A.L.R. 1230 (1938); Black on Intoxicating Liquors, § 418; Harper v. State, 91 Ark. 422, 121 S.W. 737.
Accordingly, we disapprove of the action of the trial court as indicated.