nothing by word or deed to inform his confederates of his change of purpose.102 If his act of withdrawal is known to his confederates, however, and is such as should naturally inform them of his intention to abandon the attempt, he is not responsible merely because they misconstrue his act, and suppose that he is still acting with them.103

IX. PRINCIPAL AND AGENT AND MASTER AND SERVANT.

193. In General.-A principal or master is criminally responsible for criminal acts of his agent or servant expressly or impliedly authorized by him. But, unless made so by statute, as is sometimes the case, he is not responsible for unauthorized acts. Mere ratification of an authorized act does not relate back so as to render him responsible.

An agent or servant is himself responsible for criminal acts committed in the course of his employment, though directed or commanded by his principal or master.

194. Responsibility of Principal or Master.

(a) Acts Directed or Authorized. If a principal or master directs or authorizes the commission of a felony by his agent or servant, and the latter is not an innocent agent, the principal or master is an accessary before the fact, if absent when the act is committed, or, if present, as a principal in the second degree, in accordance with the rules stated in preceding seetions.104 If the agent or servant is innocent by reason of youth, insanity, or ignorance of fact, the principal or master is guilty as principal in the first degree, whether present or absent.105 If the offense is a misdemeanor, and the agent or servant is

102 State v. Allen, supra; Wilson v. U. S. (Ind. T.) 82 S. W. $24. 108 State v. Allen, supra.

104 Ante, §§ 170 et seq., 176 et seq.; Hately v. State, 15 Ga. 346; Clark & Skyles, Agency, 1138.

105 Ante, § 168.

a guilty agent, the principal or master is liable as a principal in the second degree, whether present or absent.106 And he is the principal in the first degree if the agent or servant is innocent. 107

(b) Acts Impliedly Authorized-Consent or Acquiescence. -If a principal or master knows that his agent or servant intends to commit an offense, or is committing an offense, in the course of his employment, and acquiesces, or fails to make any effort to prevent it, he is criminally responsible for the offense to the same extent as if he had expressly commanded or authorized it.108

Thus, he is responsible if he knowingly permits his agent or servant to violate a statute prohibiting and punishing any person who shall keep for sale or sell intoxicating liquors, or who shall sell to minors or drunkards, or who shall keep a bawdy house, or a gaming house, or permit gaming, etc.109 The same is true where a bookseller knowingly permits his servant to sell libelous or obscene publications.110

106 Ante, § 164; Rex v. Almon, 5 Burrow, 2686; Com. v. Nichols, 10 Metc. (Mass.) 259; Stevens v. People, 67 Ill. 587 (keeping gaming house); Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Webster v. State, 110 Tenn. 491, 75 S. W. 1020 (selling liquor); Atkins v. State, 95 Tenn. 474, 32 S. W. 391 (operating a gaming device); Com. v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475 (selling lottery tickets). 107 Ante, § 168.

If a husband directs his wife to sell intoxicating liquors in violation of a statute, he is guilty of selling, as principal. Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684.

108 Rex v. Almon, 5 Burrow, 2686; Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Stevens, 155 Mass. 291, 29 N. E. 508, Mikell's Cas. 502; State v. Mueller, 38 Minn. 497, 38 N. W. 691.

In Britain v. State, 3 Humph. (Tenn.) 203, it was held that a master who caused or permitted his slave to go about in public indecently naked was guilty of lewdness, and indictable therefor, and that knowledge and consent might be inferred from the circumstances.

109 Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Stevens, 155 Mass. 291, 29 N. E. 508, Mikell's Cas. 502; Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56; U. S. v. Birch, 1 Cranch, C. C. 571, Fed. Cas. No. 14,595; State v. Wiggin, 20 N. H. 449.

110 Rex v. Almon, 5 Burrow, 2686.

(c) Unauthorized Acts.-In a civil action, a principal or master is liable for the wrongful acts of his agents or servants in the course of their employment, even when done without his authority and contrary to his orders; but this is not generally the case when it is sought to hold a man criminally responsible for the act of his agent or servant. Certainly at common law, and generally under statutes as well, a man is not indictable for the criminal act of his agent or servant, though committed in the course of his employment, unless the act was committed by his direction, or unless he knew of it and acquiesced in it, for, as we have seen, the general rule is that a criminal intent is nec essary to render one guilty of a crime.111 A jailer would be responsible for the death of a prisoner caused by his knowingly confining him, against his will, in an unwholesome and dangerous room; and his responsibility would be the same if he should consent to his deputy's so confining a prisoner.112 But he would not be responsible for such an act of the deputy without his consent or knowledge, at least in the absence of negligence.113 The same principle would govern where a sheriff is indicted for a negligent escape, 113a and it has been applied by most courts, though not by all, to statutory offenses by an agent or servant, as the unlawful sale or keeping for sale of intoxicating

111 Rex v. Huggins, 2 Ld. Raym. 1574; Somerset v. Hart, 12 Q. B. Div. 360; Hardcastle v. Bielby [1892] 1 Q. B. 709; U. S. v. Beaty, Hempst. 487, Fed. Cas. No. 14,555; Clark & Skyles, Agency, 1140; People v. Parks, 49 Mich. 333, 13 N. W. 618, Beale's Cas. 376; State v. Bacon, 40 Vt. 456; Com. v. Nichols, 10 Metc. (Mass.) 259, 43 Am. Dec. 432; Com. v. Briant, 142 Mass. 463, 8 N. E. 338; Com. v. Stevens, 153 Mass. 421, 26 N. E. 992, Mikell's Cas. 502; State v. Dawson, 2 Bay (S. C.) 360; State v. Smith, 10 R. I. 258; Mitchell v. Mims, 8 Tex. 6; Com. v. Junkin, 170 Pa. 195, 32 Atl. 617; and other cases specifically Icited in the notes following.

112 Rex v. Huggins, 2 Ld. Raym. 1574.

118 Rex v. Huggins, supra.

113a Nall v. State, 34 Ala. 262; Com. v. Lewis, 4 Leigh (31 Va.) 664.

liquors or adulterated milk or food, etc.,114 and the purchase of corn, etc., from a slave not having a ticket or permit to deal therein.115 It has been held that a coal dealer who sends an experienced teamster to deliver a load of coal is not criminally responsible if the latter, without his knowledge, consent, or authority drives upon and obstructs a sidewalk.116

Dissent or prohibition by a principal or master must be bona fide, in order to constitute a defense, when it is sought to hold him responsible for the acts of his agent or servant. If it is merely colorable, it can have no effect whatever, however publicly or frequently repeated. The question of authority or consent is to be determined by the real understanding between them, and is a question of fact for the jury.117

114 People v. Parks, 49 Mich. 333, 13 N. W. 618, Beale's Cas. 376; Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Putnam, 4 Gray (Mass.) 16; Com. v. Wachendorf, 141 Mass. 270, 4 N. E. 817; Com. v. Stevens, 155 Mass. 291, 29 N. E. 508, Mikell's Cas. 502; Com. v. Joslin, 158 Mass. 482, 33 N. E. 653, 21 L. R. A. 449; Com. v. Stevens, 153 Mass. 421, 26 N. E. 992; Com. v. Hayes, 145 Mass. 289, 14 N. E. 151; Hipp v. State, 5 Blackf. (Ind.) 149; Lauer v. State, 24 Ind. 131; Hanson v. State, 43 Ind. 550; O'Leary v. State, 44 Ind. 91; Thompson v. State, 45 Ind. 495; Rosenbaum v. State, 24 Ind. App. 510, 57 N. E. 156; State v. Baker, 71 Mo. 475; State v. Heckler, 81 Mo. 417; State v. Shortell, 93 Mo. 123, 5 S. W. 691; State v. McCance, 110 Mo. 398, 19 S. W. 648 (overruling State v. McGinnis, 38 Mo. App. 15); Anderson v. State, 22 Ohio St. 305; Com. v. Johnston, 2 Pa. Super. Ct. 317; Ellison v. Com., 24 Ky. L. R. 657, 69 S. W. 765; State v. Smith, 10 R. I. 258; Barnes v. State, 19 Conn. 398; State v. Wentworth, 65 Me. 234; State v. Hayes, 67 Iowa, 27, 24 N. W. 575; State v. Gaiocchio, 9 Tex. App. 387. For cases in which the contrary has been held, see note 127, infra.

In an early case in Indiana it was held that a husband was not liable for an unlawful sale of liquor by his wife in his absence, without his knowledge or consent. Pennybaker v. State, 2 Blackf. (Ind.) 484. See, also, Seibert v. State, 40 Ala. 60.

115 State v. Dawson, 2 Bay (S. C.) 360.

116 State v. Bacon, 40 Vt. 456.

117 Com. v. Nichols, 10 Metc. (Mass.) 259; Anderson v. State, 22

(d) Negligence of Principal or Master.-When it is said that a principal is not generally indictable for the acts of his agent done without his authority or consent, it is assumed that he has used due care. He will be liable for his agent's acts to the same extent as if they were authorized by him, if they are due to want of proper care and oversight on his part, or other negligence in reference to the business which he has intrusted to the agent, for moral guilt or delinquency is imputable to him in case he fails to use proper care.118

119

(e) Libel.—Where a libelous publication was sold in a bookseller's shop, or a libel published in a newspaper, by a servant of the proprietor, it was held by the earlier English cases that the proprietor was prima facie responsible, but he was permitted to show that he was not privy nor assenting to nor encouraging the publication, and thus escape responsibility." Afterwards evidence of the publication by the servant was held conclusive upon the master, and he was not allowed to show his innocence, upon the ground that this was necessary to prevent the escape of the real offender behind an irresponsible party. A statute, however, has since been enacted permitting the master to show that the publication was without his authority,

120

Ohio St. 305; State v. Wentworth, 65 Me. 234; Com. v. Johnston, 2 Pa. Super. Ct. 317; Redgate v. Haynes, 1 Q. B. Div. 89.

118 Com. v. Morgan, 107 Mass. 199. And see Reg. v. Holbrook, 3 Q. B. Div. 60, 4 Q. B. Div. 42.

In Rex v. Dixon, 3 Maule & S. 11, 4 Camp. 12, Mikell's Cas. 137, the defendant was convicted of selling unwholesome bread, upon proof that his foreman had, by mistake, put too much alum in it. There was no evidence that the master knew of the quantity used in this instance. But Bayley, J., said: “If a person employed a servant to use alum, or any other ingredient, the unrestricted use of which was noxious, and did not restrain him in the use of it, such person would be answerable if the servant used it to excess, because he did not apply the proper precaution against its misuse."

119 Rex v. Almon, 5 Burrow, 2686.

120 Rex v. Gutch, Mood. & M. 433; Rex v. Walter, 3 Esp. 21.