State v. Waxman

The opinion of the court was delivered by Swayze, J.

The defendant was convicted of illegal sales of liquor. He did not personally make the sales, hut the state claimed that they were made by his employes with his assent. The court charged that if the jury believed that the .sales were made by either of the men alleged to be employes, “and made with the knowledge or what a reasonable man would know to he the act of "Waxman, he is responsible for the acts of these men. In other words, if he had knowledge that it was going on, he would he responsible, or if he had reason to know — he can’t close his eyes to it and say he didn’t know these other men were selling. It is his duty to know what goes on in Ms place, and if a reasonable man would have known it, lie is responsible for the acts.” This charge was erroneous. It attempted to engraft upon the criminal law a theory of liability proper to the law of negligence, but not to the criminal law, where there must he either a criminal *28 intent or such language in the statute defining the crime as shows that the legislature meant that criminal intent should be unnecessary. The statute in the present case make's it unlawful to sell, or permit to be sold without a license, certain-specified liquors. In view, of the principle that requires criminal statutes to be strictly construed, we think the permission made unlawful is such permission as amounts to actual assent and not such permission as involves mere failure to act. The consequences of adopting the latter definition would be absurd; for example, it would make it unlawful for a mere outsider to permit a sale though he had no authority to forbid it. Obviously, a construction must be adopted that would prevent so absurd a result. We can think of no safer construction than to attribute to the word “permit” tire meaning of “assent.” This would leave it open to a jury to find as a fact under the circumstances of a particular case that the defendant by willfully closing his eyes winked at the offence and thereby tacitly assented and made himself guilty of permitting the unlawful sale within the meaning of the statute. This view condemns the charge, for that failed to leave to 'the jury the question whether what the defendant failed to do justified the inference of his assent to what the alleged employes did.

It may he well to add that tire indictment in the present case averred that the defendant sold, and caused, suffered 'and knowingly permitted liquor to be sold without a license. The charge allowed a conviction, though none of these averments was proved.

The judgment must be reversed and the record remitted for a new trial.