State v. Teahan

Carpenter, J.

The motion in error presents three questions.

1. The first count in the information charges that the defendant did unlawfully “ sell and exchange and offer and expose for sale and exchange, to one George H. Fuller, certain intoxicating liquors, without a license therefor, &c.” The defendant demurred for duplicity, and the demurrer was overruled.

It is quite evident from the well-considered cases of Barnes v. The State, 20 Conn., 232 , and State v. Burns, 44 Conn., 149 , that the count is not bad for duplicity. It is unnecessary to repeat the reasons on which those decisions rest. It is attempted however to distinguish this case from them by suggesting that a sale and exchange are essentially different transactions, and cannot be regarded as successive stages of the same transaction. Admitting this to be so to some extent, still it fails to establish the fact that two offenses are here charged. The intention of the legislature is plain, which is to prevent the disposition of liquor for a consideration. Hence an exchange, as well as a sale, is in terms prohibited. The intention of the pleader is equally plain—to charge one transaction and one only. There is but one time and one place, and we think it was intended to charge but one act; but whether that act was a sale for cash or a sale in a broader sense by way of an exchange, the pleader not knowing alleged that it was both, so that proof of either would sustain the charge.

2. The second count charges the defendant with keeping intoxicating liquors with intent to sell contrary to law. That count is demurred to, claiming that it is bad for uncertainty, because the kind and quantity of liquor are not stated.

The information follows the language of the statute and clearly describes the precise act which the statute declares to be an offense. The statute does not require any particular kind or quantity of liquor; any quantity of any kind of *100 spirituous or intoxicating liquors is sufficient, provided the jury are satisfied of the existence of the intent to sell. The term spirituous liquors or intoxicating liquors has a well understood meaning. Even as defined and enlarged by statute it embraces not a large number of liquids, and if all were enumerated they might be brought within the compass of an ordinary information. If that was dop.e the defendant would have no more information than she now has; while if the information specifies one or two kinds the effect will be to limit the proof and might needlessly embarrass the administration of justice.

We cannot see that the defendant has suffered any hardship, or that sustaining this count will be likely to lead to any practical inconvenience.

3. Another error assigned is, that the court erred in sentencing the accused to pay a fine on each count in the information. It has for a long time been the practice in this state to try the accused for two or more misdemeanors or minor offenses charged in separate counts in the same information, and this practice has received the sanction of this court. 2 Swift’s Digest, 408; Barnes v. The State, 19 Conn., 398 .

We find no error in the record.

Several questions are also presented by the motion for a new trial.

' 1. The defendant’s counsel requested the court to instruct certain witnesses who had purchased liquor of the defendant, and who were offered by the state to prove that fact, that they were not bound to testify to the purchase of liquor provided they knew at the time that the defendant had no license. The court disregarded this request and required the witnesses to testify. The counsel then claimed that such witnesses were accomplices, and requested the court to advise the jury not to convict upon their uncorroborated testimony. That request was refused.

These two points present the same question—’Whether he who knowingly purchases liquor of one unauthorized to sell is himself guilty of a criminal offense. This question *101 now comes before this court for the first time. It has been decided in the negative in Massachusetts. Commonwealth v. Willard, 22 Pick., 476 ; Commonwealth v. Kimball, 24 Pick., 366 . And in the affirmative in Tennessee. Steele v. Bonner, 2 Head, 135 . The weight of authority is in the negative. The fact that the question has not before been raised in this state is an indication that the almost universal sentiment of the profession is that the purchaser is guilty of no offense—a fact of no little significance in determining such a question.

It is insisted however that the statute (Gen. Statutes, p. 545, sec. 3,) which provides that “ every person who shall assist, abet, counsel, cause, hire, or command another to commit any offense, may be prosecuted and punished as if he were the principal offender,” governs this case; it being contended that the person who purchases the liquor, induces the seller to commit the crime of selling it, and so aids and abets him in the commission of the offense.

But we are satisfied that the purchaser is not an abettor of the offense within the meaning of the statute. The “ abetting ” intended by it is a positive act in aid of the commission of the offense — a force, physical or moral, joined with that of the perpetrator in producing it. This is clear from the context, where abetting is classed with “assisting,” “causing,” “hiring,” and “commanding.” The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal—approach it from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His approach to the crime is from the other side; he touches it at wholly another point. It is somewhat like the case of a man who provokes or challenges another to fight with him. If the other knocks Mm down, he has induced, but in no proper sense abetted, this act of violence. He has not contributed any force to its production. He touches the offense wholly on the other side. The purchaser of liquor, by his offer to buy, induces the seller of the liquor to make the sale ; but he can not be said to “ assist ” him in it. The whole force, *102 moral or physical, that went to the production of the crime as such, was the seller’s. » ■

2. The State offered to prove that on the 25th day of April, 1881, the defendant made a written return, as required by the United States statute, declaring her intention to carry on the business of a retail liquor dealer for the 3ear commencing May 1st, 1881, and that shortly after she paid the tax required upon that business. This testimony was objected to and admitted.

Of course the evidence did not of itself prove the offense charged in the first count. But it did tend to prove an intention to carry on the business during the coming year; and that intention, especially if the jury were satisfied that it continued to the time of the alleged sale, they might well consider in determining whether there was an actual sale; not that it proved the unlawfulness of the sale—for that must be proved by other evidence—but it did tend to prove the act of selling; and that was a fact incumbent upon the State to prove.

We also think it was clearly admissible under the second count. The offense there charged required proof of three things—possession of the liquors, an intent to sell, and the want of a license. These three combined constituted the offense. Two of them, possession and no license, were susceptible of direct proof; the other, an intent to sell, must ordinarily be proved by circumstantial evidence. Any circumstance that tended to prove such an intention was admissible. A declaration by the accused that she intended to sell was clearly admissible. Conforming to the United States statute by making return and paying a tax for the privilege of selling was equivalent to such a declaration. It matters not that the transaction did not show that the intended sales would be unlawful. It was enough if it tended to show an intent to sell. The illegally of the intended sales was another matter to be shown by other evidence—the evidence' that she was not duly authorized to sell. ^

This question came before the Supreme Court of Yer *103 mont in State v. Intoxicating Liquors, 44 Vt., 208 . The court says:—“No question is made but that the fact of such payment, if properly proved, would be proper evidence tending to show that the claimant had procured the liquors in question for the purpose of retailing them. And no such question could be successfully made; for the fact that a person put himself to the expense of a license as a retail dealer in liquors would be quite pertinent to show that he did so for the purpose of that avocation, intending to pursue it.”

The same question was decided in the same way in State v. Wiggin, 72 Maine, 425. See also State v. Gorham, 65 Maine, 270.

3. The only remaining question relates to the effect of a sale or sales proved as evidence under the second count. In behalf of the defense the court was requested to charge the jury that “ proof of sales of intoxicating liquor by the defendant, without proof that other liquor than that sold was owned or kept by her, will not warrant a conviction under the second count. Proof of the sale of certain liquor is admissible only as tending to show the intent with which other liquor was owned or kept, if such other liquor was owned or kept.” The court did not so charge, but charged that “proof of a sale of intoxicating liquor will support a conviction upon the second count, if such sale is not made the basis of the charge contained in, or of a conviction under, the first count, if such proof satisfies each juror beyond any reasonable doubt that the accused kept intoxicating liquor for sale as therein charged.”

The point of the request seems to be, that proof of sales was not evidence that the defendant owned and kept that identical liquor with intent to sell. We think the court properly refused thus to limit the effect of the proof. It certainly did tend to evince an intent to sell that liquor; and also the fact that the defendant owned and kept it. The court however was careful to leave it for the jury to determine its weight and to guard against the possibility of punishing the defendant twice for the same act. The *104 evidence being tbus guarded and limited, we think the defendant has no cause of complaint.

A new trial is not advised', and there is no error in the record.

In this opinion the other judges concurred; except Park, C. J., who dissented as to the admissibility of the return to the United States collector of internal revenue.