consent, or knowledge, and was not due to want of due care and caution on his part.121

In this country it has been held, independently of any statute, that the master is not responsible for the publication, unless he authorized it or knew of it, or unless it was due to want of proper care and oversight, or other negligence, in reference to the business intrusted to the servant, in which case he is responsible.122

(f) Nuisance.-An exception to the general rule has been made in the case of nuisance. It seems that the proprietor of works carried on for his profit by agents is liable to indictment for a public nuisance caused by acts of his agents in carrying on the works, though done by them, not only without his knowledge, but contrary to his general orders.123

(g) Statutes Dispensing with Authority or Knowledge.—As was shown in a previous chapter, the legislature may, on grounds of public policy, dispense with the necessity for a criminal intent, and punish a man for acts done or permitted by him without regard to his mental attitude.124 And there are statutes in some states which have been construed by the courts as intended to render a principal or master liable criminally for his agent's or servant's commission of the offense prohibited and punished, though the agent or servant may have acted not only without his authority or knowledge, but even contrary to his orders.125

121 See, as to this statute, Reg. v. Holbrook, 3 Q. B. Div. 60, 4 Q. B. Div. 42.

122 Com. v. Morgan, 107 Mass. 199.

123 Reg. v. Stephens, L. R. 1 Q. B. 702; Rex v. Medley, 6 Car. & P. 292. Smoke Nuisance, Barnes v. Akrora, L. R. 7 Q. B. 474.

But see Chisholm v. Doulton, 22 Q. B. Div. 736, where a conviction under the smoke nuisance act was denied, the master having provided proper equipment and his stoker being negligent.

124 Ante, §§ 56, 70.

125 People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; Rex v. Dixon, 3 Maule & S. 11, 4 Camp. 12, Mikell's Cas. 137; Attorney

Some courts, for example, have thus construed statutes requiring saloonkeepers to keep their saloons closed on Sundays,126 statutes prohibiting and punishing the sale of intoxicating liquors, or their sale to minors or drunkards,127 prohibiting screens or curtains in licensed places,127a and statutes prohibiting the sale of adulterated food products.127b

(h) Presumption of Authority.-In most jurisdictions, perhaps, in which it is held that a principal or master is not answerable for the criminal acts of his agent or servant in the course of his employment, it is held at least if the act is of such a character that, if not criminal, it would be within the scope of the agent's or servant's authority, as in the case of a sale of a libelous publication in a bookseller's shop, or an un

General v. Siddon, 1 Cromp. & J. 220; State v. Baltimore & S. Steam Co., 13 Md. 181; Clark & Skyles, Agency, 1142.

Under a penal statute in Illinois "to prevent trespassing by cutting timber," the object of which is to punish the wrongdoer as well as compensate the injured party, it is held that in order to punish the principal for the act of his agent, it must appear from the evidence that the agent committed the act under the express directions of his principal, or at least that from the nature of his employment authority to do the act was necessarily implied. Cushing v. Dill, 3 Ill. 460; Satterfield v. Western Union Tel. Co., 23 Ill. App. 446; Cushman v. Oliver, 81 Ill. 444.

126 People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; Banks v. City of Sullivan, 78 Ill. App. 298; People v. Blake, 52 Mich. 566, 18 N. W. 360.

127 Police Com'rs v. Cartman [1896] 1 Q. B. 655; Noecker v. People, 91 Ill. 494; McCutcheon v. People, 69 Ill. 601; George v. Gobey, 128 Mass. 289; Whitton v. State, 37 Miss. 379; Robinson v. State, 38 Ark. 641; Edgar v. State, 45 Ark. 356; Mogler v. State, 47 Ark. 109, 14 S. W. 473; Carroll v. State, 63 Md. 551, 3 Atl. 29; State v. Denoon, 31 W. Va. 122, 5 S. E. 315; State v. Dow, 21 Vt. 484; State v. Kittelle, 110 N. C. 560, 15 S. E. 103, 28 Am. St. Rep. 698, 15 L. R. A. 694 (reviewing many cases); Riley v. State, 43 Miss. 397; Lehman v. D. C., 19 App. D. C. 217; Loeb v. State, 75 Ga. 258; Snider v. State, 81 Ga. 753, 7 S. E. 631, 12 Am. St. Rep. 350. For decisions to the contrary, see note 114, supra.

127a Com. v. Kelley, 140 Mass. 441, 5 N. E. 834.

127b Brown v. Foot, 66 Law T. (N. S.) 649.

lawful sale of liquors in a saloon-that the state makes out a prima facie case against the principal or master by proof of the agent's or servant's act, and it is for the former to rebut the presumption of authority by proof that the act was without his authority or knowledge.128 This rule was laid down in the earlier Massachusetts cases,1 129 but has since been repudiated.129a In a late case it was held that there is no presumption of authority or consent, but that the jury may infer authority or consent, from the agent's or servant's act.130 Neither of these views is sound. The proper rule is that the manner in which the business is conducted and other circumstances may be such as to justify the jury in finding that the principal or master acquiesced or authorized the agent's or servant's act, but that, in order to convict, there must be some other evidence than mere proof of the relation of principal and agent or master and servant.1 The presumption of innocence is entitled to more weight than any presumption of authority from the mere fact of agency.

131

(i) Ratification of Unauthorized Act.-A principal or master does not become criminally responsible for the act of his

128 Rex v. Almon, 5 Burrow, 2686; Anderson v. State, 22 Ohio St. 305; State v. Wentworth, 65 Me. 234; State v. McCance, 110 Mo. 398, 19 S. W. 648; State v. Heckler, 81 Mo. 417; Fullwood v. State, 67 Miss. 554, 7 So. 432.

129 Com. v. Nichols, 10 Metc. (Mass.) 259.

129a Com. v. Stevenson, 142 Mass. 466, 8 N. E. 341.

130 Com. v. Briant, 142 Mass. 463, 8 N. E. 338. And see Com. v. Holmes, 119 Mass. 195; Com. v. Locke, 145 Mass. 401, 14 N. E. 621; Com. v. McNeese, 156 Mass. 232, 30 N. E. 1021; Com. v. Hurley, 160 Mass. 10, 35 N. E. 89; Com. v. Houle, 147 Mass. 380, 17 N. E. 896; Com. v. Perry, 148 Mass. 160, 19 N. E. 212. The question is not for the court, but for the jury. Com. v. Hayes, 145 Mass. 289, 14 N. E. 151.

131 See State v. Smith, 10 R. I. 258; State v. Burke, 15 R. I. 324, 4 Atl. 761; Thompson v. State, 45 Ind. 495.

A single unlawful sale will not raise a presumption of authority to make unlawful sales of the same nature (State v. Mahoney, 23 Minn. 181; Parker v. State, 4 Ohio St. 563); neither will a ratification of previous unlawful sales. Patterson v. State, 21 Ala. 571.

agent or servant, committed without his knowledge or authority, by subsequently ratifying the same. He must be liable, if at all, at the time the act is done.132

"In the law of contracts, a posterior recognition, in many cases, is equivalent to a precedent command; but it is not so in respect of crimes. The defendant is responsible for his own acts, and for the acts of others done by his express or implied command, but to crimes the maxim, "Omnis ratihabitio retrotrahitur et mandato equiparatur," is inapplicable.133

195. Responsibility of Agent or Servant.

It is well settled that, if an agent or servant knowingly commits a crime in the course of his employinent, he is criminally responsible therefor. In the absence of mistake of fact, the fact that the act was done by authority, direction or command of his principal or master is no defense whatever, for no man can authorize another to do what he cannot lawfully do himself.134 Thus, a person who obtains money or property from another by false pretenses, with intent to defraud, cannot escape

132 Morse v. State, 6 Conn. 9, Beale's Cas. 223.

But see Reg. v. Woodward, 9 Cox, C. C. 95, where a husband was convicted of receiving stolen property first left with his wife on the theory that the receipt was not complete until he had bargained with the thief as to the price.

133 Hosmer, C. J., in Morse v. State, supra. In this case it was held that where an employe gave credit to a minor student of Yale College for suppers, wine, and other liquors, in violation of a statute, the employer did not become responsible criminally by reason of his subsequent ratification of the employe's act.

134 Ante, § 83; Com. v. Hadley, 11 Metc. (Mass.) 66, Beale's Cas. 372; State v. Bell, 5 Port. (Ala.) 365; Atkins v. State, 95 Tenn. 474, 32 S. W. 391; Sanders v. State, 31 Tex. Cr. R. 525, 21 S. W. 258; Smith v. District of Columbia, 12 App. D. C. 33; Douglass v. State, 18 Ind. App. 289, 48 N. E. 9; 2 Clark & Skyles, Agency, 1321.

No individual can authorize another to violate a public law. State v. Matthis, 1 Hill (S. C.) 37.

responsibility on the ground that he was acting as the mere agent or servant of another.135

The same is true where an agent or servant keeps for sale or sells intoxicating liquors in violation of law,136 or maintains a nuisance, 136a or keeps without license a business requiring a license,136b or keeps a bawdy house or gaming house, operates a gaming device, or permits gaming,137 or takes usury,1 or obstructs a highway.138

135 State v. Chingren, 105 Iowa, 169, 74 N. W. 946.

137a

136 Com. v. Hadley, 11 Metc. (Mass.) 66, Beale's Cas. 372; Witherspoon v. State, 39 Tex. Cr. R. 65, 44 S. W. 164, 1096; State v. Wadsworth, 30 Conn. 55; Menken v. City of Atlanta, 78 Ga. 668, 2 S. E. 559; Baird v. State, 52 Ark. 326, 12 S. W. 566; Abel v. State, 90 Ala. 631, 8 So. 760; Hays v. State, 13 Mo. 246; Schmidt v. State, 14 Mo. 137; State v. Morton, 42 Mo. App. 64; State v. Chastain, 19 Or. 176, 23 Pac. 963; French v. People, 3 Park. Cr. R. (N. Y.) 114; State v. Matthis, 1 Hill (S. C.) 37.

It is immaterial that the servant is a mere volunteer and receives and expects no compensation (State v. Herselus, 86 Iowa, 214, 53 N. W. 105; State v. Finan, 10 Iowa, 19; Beck v. State, 69 Miss. 217, 13 So. 835; State v. Bugbee, 22 Vt. 32), or is the minor child of the owner being in fact of years of discretion. Cagle v. State, 87 Ala. 38, 93, 6 So. 300.

In Com. v. Williams, 4 Allen (86 Mass.) 587, a distinction is made between one assuming without authority to act as the agent of another, and one who is a mere messenger or go-between; the former being guilty and the latter not.

A servant cannot be convicted of "keeping" where the master is personally present and directing the business (Com. v. Galligan, 144 Mass. 171, 10 N. E. 788; Com. v. Churchill, 136 Mass. 148; State v. Gravelin, 16 R. I. 407, 16 Atl. 914); but if he sells in the master's absence, he may. Com. v. Brady, 147 Mass. 583, 18 N. E. 568; Com. v. Kimball, 105 Mass. 465; Com. v. Merriam, 148 Mass. 425, 19 N. E. 405. See, also, State v. Hoxsie, 15 R. I. 1, 22 Atl. 1059, 2 Am. St. Rep. 838.

136a Allyn v. State, 21 Neb. 593, 33 N. W. 212.

1366 Eating house: Winter v. State, 30 Ala. 22.

137 Stevens v. People, 67 Ill. 587; Atkins v. State, 95 Tenn. 474, 32

S. W. 391; Com. v. Drew, 3 Cush. (57 Mass.) 279.

137a People v. Dunlap, 32 Misc. (N. Y.) 390, 66 N. Y. Supp. 161.

138 Sanders v. State, 31 Tex. Cr. R. 525, 21 S. W. 258; Smith v. District of Columbia, 12 App. D. C. 33.