II. WHAT IS EVIDENCE OF A "COMMON SELLER," OR OF A TIPPLINGHOUSE. § 2437. Proof of retail sales of liquor drunk on the premises, is sufficient proof of the party being a common seller or of his keeping a tippling-house. p III. PRINCIPAL'S RESPONSIBILITY FOR ACT OF AGENT OR PARTNER. § 2438. A shopkeeper is indictable for an unlawful sale of spirituous liquors by a servant employed in his business. q Where, however, the sale is not in the immediate line and direction of the principal's business, the fact of agency is only prima facie evidence of the principal's guilt. r If there be no authority, express or implied, the principal must be acquitted. 8 Prima facie agency may be rebutted by showing that the agent was explicitly and bona fide ordered to make no such sale, and that the sale was made without the defendant's cognizance and against his direction, and outside of the range of the agent's duties. $1 One partner is liable for another's sale, when such sale was in pursuance of an agreement between the two that liquor should be sold. t While in order to convict an employer for specific sales of intoxicating liquor by his clerk, the jury must be satisfied of his assent to, and not merely of his knowledge of the sales; u yet when the charge is for a nuisance, then the employer is generally liable for all the agent's acts within the range of his employ ment. v Evidence that liquor charged to have been sold by the father p Brock v. Com. 6 Leigh, 634. See Com. v. Wood, 4 Gray, 11; Cochran v. State, 26 Texas, 678. 7 Com. v. Park, 1 Gray, 553; Com. v. Nichols, 10 Metc. 259; Com. v. Major, 6 Dana, 293; State v. Mathis, 1 Hill S. C. 37; Britain v. State, 3 Humph. 203; Com. v. Gillespie, 9 Serg. & R. 469; Molihan v. State, 30 Ind. 266; State v. Dow, 21 Verm. 484; Schmidt v. State, 14 Mo. 137; State v. Stewart, 31 Me. 515. r Com. v. Nichols, 10 Metc. 259. See ante, § 151-2-3-4, 1003 a, 2874. s Barnes v. State, 19 Conn. 398: Hipp v. State, 5 Black. 149; State v. Dawson, 2 Bay, 360; Goods v. State, 3 Greene (Iowa), 566. See fully, ante, § 151-2-3, &c., 2374. s1 Anderson v. State, 22 Ohio St. 305; Barnes v. State, 19 Conn. 399; Com. v. Nichols, 10 Metc. 259. t State v. Neal, 7 Foster, 131. was sold by the son at his bar, supports an information against the father. But the mere fact that the son sold liquor at his father's bar is not, in the father's absence, primâ facie evidence that he sold it at his request or by his authority. w IV. AGENT'S RESPONSIBILITY FOR PRINCIPAL. § 2439. It is no defence that the defendant was acting as agent for another. He is criminally responsible as principal himself, notwithstanding such agency. x Nor is it any defence that he sold the liquor without authority. y A clerk or servant of the real householder may be convicted on an indictment for a liquor nuisance, if such clerk or servant is at any time in control of the house, no matter for how short a period. z V. WHAT MAY BE CONSIDERED "SPIRITUOUS" OR "INTOXICATING" LIQUORS UNDER THE STATUTES. § 2440. 1. Common cordial. a 2. Brandy or gin, mixed with sugar and water. b 3. Unadulterated gin, brandy, or rum, without proof that they are intoxicating.c 4. "Strong beer." This has been ruled to be "intoxicating;"d and to be "strong liquor," e though it is otherwise with "small beer." Whether "lager beer" is "intoxicating," is said to be a question for the jury; g to whom, indeed, such questions properly belong. The defendant's belief, that the drink is not intoxicating, is no defence. h 5. "Wine," or other fermented liquor, is not "spirituous." i An averment that the respondent sold rum, brandy, and gin, is w Parker v. State, 4 Ohio N. S. 563. x State v. Matthis, 1 Hill's S. C. Rep. 37; Britain v. State, 3 Humph. 203; Com. v. Gillespie, 7 Serg. & R. 469; Com. v. Major, 6 Dana, 293; State v. Wiggin, 20 N. H. 449; Com. of Excise v. Dougherty, 55 Barbour, 332; Hays v. State, 13 Mo. 246; State v. Bugbee, 22 Ver. 32; Winter v. State, 30 Ala. 22; State v. Dow, 21 Ver. 484. y Whitton v. State, 37 Missis. 379; State v. Finan, 10 Iowa, 19; State v. Wadsworth, 30 Conn. 55. z Com. v. Kimball, 105 Mass. 466. 565. b Com. v. Odlin, 23 Pick. 275. g People v. Zeiger, 6 Parker C. R. 355. h Ante, § 83; post, § 2442. i State v. Moore, 5 Blackf. 118; Caswell v. State, 2 Humph. 402, sufficient, without an averment that they were spirituous liquors.j And, on the other hand, it is said not to be necessary to designate what was the particular kind of spirituous liquor sold. k VI. HOW FAR MEDICAL USE IS A DEFENCE. § 2441. Unless there be an express exception in the statute, the fact that the liquor is sold by a retailer for medicine is no defence. It is otherwise, however, when the liquor is given by a physician to a sick man as medicine, though charged in the physician's bill. m And to constitute the defendant an apothe cary under the exception in the statute, he must have some skill in the preparation of medicine. Keeping drugs merely will not be enough.n Where there was evidence, tending to show that the liquor was purchased for medicinal purposes, but none that it was sold for that purpose, a conviction was held right. o In Ohio, any person may lawfully, in good faith, give away intoxicating liquors, for medicinal or other purposes, and may lawfully sell them in any quantity for such purposes, to be drank elsewhere than where sold; but he cannot lawfully sell them (except such as are specially excepted by the statute) to be drank where sold, for any purpose. p VII. HOW FAR IGNORANCE IS A DEFENCE. § 2442. Cases may readily be conceived in which alleged ignorance on the part of a vendor as to the character, either of the liquor or of the vendee, may be set up as a defence. The vendor may say that it is his conscientious belief that alcohol may stimulate, but does not inebriate; or that the person to whom he sells is one entitled by law to purchase; e. g. one seeking to use the liquors for medical purposes, or one of full age, as distinguished j State v. Munger, 15 Ver. 290. k State v. Fox, 1 Harr. N. J. 152; Com. v. Odlin, 23 Pick. 275. See State v. Peterson, 41 Ver. 504; though see Gunter v. Lecky, 30 Ala. 591. 7 Phillips v. State, 2 Yerger, 458; State v. Whitney, 15 Ver. 298; Com. v. Kimball, 24 Pick. 366; State v. Brown, 31 Me. 522; Com. v. Sloan, 4 Cush. 52. m State v. Larrimore, 19 Mo. 391; Thomasson v. State, 15 Ind. 449. See Russell v. Sloan, 33 Ver. 656. And see contra, State v. Hall, 39 Maine, 107. n State v. Whitney, 15 Ver. 298. o Leppert v. State, 7 Ind. 300. p Schaffner v. State, 8 Ohio St. R. N. S. 643. from a minor, when to the latter sales are prohibited. But to such defence the answer is one that has been already given, q that when a specific act is made by the law indictable, irrespective of the defendant's motive or intent, his belief that he was right in what he did, based on a mistake of fact, is no defence. Eminently is this the case with regard to intoxicating drinks. Legislatures in many states, on high grounds of public morality, have either partially or totally prohibited the sale of such drinks. To evade such laws various devices have been adopted. Intoxicating liquors have been advertised with innocent names: "Bitters," "Tonics," "Alteratives," "Cordials." Certificates are given that they contain no alcohol, and nothing to inebriate. Selling is disguised as trading, or showing sights. r Persons to whom sales are prohibited, e. g. minors, become at once to the vendors adults. If pretexts such as these are sustained, the worst vendors of the worst liquors would be the best protected by the law. They would have only to set up an honest belief" that the liquor was not intoxicating, or that the sale was only a trade, or that the minor was of full age, to go free. But the law declares that such honest belief" is no defence. 1 VIII. AUTREFOIS ACQUIT. 8 § 2443. A conviction for retailing to one person is no bar to an indictment for retailing to another, though the act of selling charged in the second indictment was anterior to the finding of the bill on which the conviction was had. t So, where two bills for retailing were found against the defendant at the same time, and the first charged a retailing to A. B., and to divers other persons; the second, a retailing to C. D., and to divers other persons, and a conviction was had on the first indictment, and it was pleaded in bar of the second; it was held, that the words q Ante, § 83. r See post, § 2453. rl See ante, § 83; post, § 2453, and see State v. Hartfiel, 24 Wisc. 60; Ulrich v. Com. 6 Bush, 400; Com. v. Goodman, 97 Mass. 117. As dissenting, see Brown v. State, 24 Ind. 113; Fahrbach v. State, 24 Ind. 77; State v. Kalb, 14 Ind. 403, where it was held, that due care having been shown, honest belief was a defence. See fully ante, § 83. s See generally, ante, 564-5-6-7. t State v. Ainsworth, 11 Ver. 91; State v. Cassety, 1 Rich. 90. See per contra, State v. McBride, 4 McCord, 332, overruled by State v. Cassety, as above; and see Com. v. Mead, 10 Allen, 396. "and to divers other persons," in both indictments, must be rejected as surplusage, and the plea in bar was overruled. u A conviction for specific sales, under one statute, is not barred by a conviction, under another statute, of being at the same period of time a common seller. v Clearly is a conviction of a disorderly or tippling-house, as a nuisance, no bar to an indictment for specific sales, or for being a common seller. w An acquittal for a sale to a "person unknown," is no bar to a prosecution for a sale to A. B. x A conviction of the husband for maintaining a liquor nuisance is no bar to a conviction on the same evidence of the wife. y IX. FEME COVERTS. § 2444. A feme covert may be jointly indicted with her husband for an illegal sale made with his approval, though he was at the time absent. z If made by her in his absence, and not under his immediate command, though in the house in which they live and trade together, she may be indicted singly. a She is exclusively responsible for such a sale when she is living separate and apart from her husband, and the sale is without his approval. 6 X. AVERMENT AND PROOF OF VENDEE. § 2445. The general rule is, that in an indictment against a person for selling spirituous liquors by the small measure, without a license, it is not necessary that it should be averred to whom they were sold, or the number of the persons. c But in u State v. Cassety, 1 Rich. 90. v State v. Coombs, 32 Me. 527; State v. Maher, 35 Me. 225; State v. Inness, 53 Me. 536; State v. Johnson, 3 R. I. 94; Com. v. Kennedy, 97 Mass. 224; though see contra, Miller v. State, 3 Ohio St. 475. w State v. Williams, 1 Vroom, 102; State v. Inness, 53 Me. 536. x State v. Birmingham, 1 Busbee, 120. See ante, § 565. y Com. v. Welsh, 97 Mass. 593. See ante, § 78-80. z See ante, § 80; Com. v. Hamor, 8 Grat. 698; Com. v. Tryon, 99 Mass. 442. Com. v. Welsh, 97 Mass. 593; Gening v. State, 1 McCord, 573; R. v. Crofts, 7 Mod. 397; State v. Haines, 35 N. H. 207. Ante, § 78-80. b Ibid.; Pennybaker v. State, 2 Blackf. 484. State v. Collins, 1 McC. 355. Ante, § 78. c State v. Munger, 15 Ver. 290; People v. Adams, 17 Wend. 475 ; Com. v. Dove, 2 Virg. Cas. 26; Com. v. Smith, 1 Grat. 553; Com. v. Thurlow, 24 Pick. 374; State v. Webster, 5 Halsted, 293; Cannady v. People, 17 Ill. 158; Morrison v. Com. 7 Dana, 219; Cochran v. State, 26 Texas, 678; State v. Rogers, 39 Mo. 431; Rice v. Peo a Com. v. Murphy, 2 Gray, 510. See ple, 38 Ill. 435; Osgood v. People, 39 |