
    Alexander P. Anderson v. The State.
    1. "Where, in a prosecution for unlawfully selling intoxicating liquor, it. appears hy the evidence for the state, that the sale was made hy the-agent of the defendant in charge of the establishment where the-liquor was sold, it is competent for the defendant to rebut the presumption of prima facie agency, which the evidence makes against, him, hy showing that the sale was, in fact, made without his authority and against his directions.
    2. But the directions to the agent, forbidding the sale, must be in good' faith; for, however notorious or formal they may he, they can have-no effect, if they are merely colorable. The fact of agency is to he-determined hy the real miderstanding'bQt'weeii the principal and agent..
    Error to the Court of Common Pleas of Lorain county;, reserved in the District Court.
    The plaintiff in error was indicted, in the Court of Common Pleas of Lorain county, for unlawfully selling intoxicating liquor to a minor, in violation of the statute.
    The state introduced evidence tending to prove that the-defendant, at the time of the acts charged in the indictment, was the owner of a saloon in said county, which was-managed and conducted by one Ingersoll as his clerk and agent; that defendant also kept and managed a grocery store in a building some ten rods distant from said saloon,, and only went to the saloon occasionally; that, on the day named in the indictment, said Ingersoll, acting as agent of defendant, unlawfully sold intoxicating liquor to one Bartlett, a minor. The defendant, in his turn, offered evidence tending to prove that he employed Ingersoll only to make-lawful sales; that he repeatedly gave him most strict and positive instruction to sell no intoxicating liquor to any minor, and that, in making said sale to Bartlett; Ingersoll had acted without authority from defendant, and withoutdefendant’s knowledge, but the court excluded said evidence from the jury.
    The defendant asked the court to charge, that if Ingersoli made said sale in violation of the instructions of his principal, and contrary to his known wishes, the defendant would not be liable for said, sale; but the court refused to so instruct the jury.
    The court charged, that if Ingersoll was employed as tha agent of defendant to sell intoxicating liquors according to law, and, in the course of said employment, did make the sale charged in the indictment, the defendant was liable therefor, though said sale was made in violation of his express and positive instructions. The defendant excepted to said exclusion of evidence, to the refusal to charge, and to the charge as given, and his bill of exceptions was allowed, signed, and sealed.
    A verdict of guilty was returned against the plaintiff in error, and a fine was adjudged against him.
    The case was brought before the District Court on writ ■of error, where it was reserved for decision by the Supreme Court.
    The rulings of the court in excluding the evidence offered by the plaintiff in error, and in refusing-to charge as asked, and, in the charge as given, are assigned for error.
    IV. L. Johnson, for plaintiff in error:
    The language of the statute, “ It shall be unlawful for any person or persons, by agent or otherwise, to sell, etc.,” clearly implies an act of the principal in effecting the sale. •Can it be said that the principal sells, when the sale is made ¡by the agent contrary to his wishes and instructions ?
    But this question seems to be well settled by authorities.
    If the proof rejected in this case had been sustained, there can be no pretense that the plaintiff' incurred any moral g'uilt by the act of his agent. As a general rule, legal guilt is not different from moral guilt, in that both lie in the intention. Commonwealth v. Nichols, 10 Met. 259; Miller v. The State, 5 Ohio St. 275.
    The principal is not liable criminally for the acts of his .agent, done without his authority or assent. Commonwealth v. Putnam, 4 Gray. 16; Commonwealth v. Nichols, 10 Met. 259; Parker v. The State, 4 Ohio St. 563; Miller v. The State, 5 Ib. 275; Barnes v. The State, 19 Conn. 398'. The last case cited has an important bearing on the pres•ent, from the fact that the statute, on which the decision is founded., is similar to the Ohio statute, and this decision being prior to the date of the Ohio statute, it should be presumed that the legislature intended our statute should receive the same construction.
    The reporter found neither name nor brief of counsel for state.
   White, J.

The correctness of the rulings of the court below depends on the construction to be given to a provision of the act of May 1, 1854, providing against the ■evils resulting from the sale of intoxicating liquors. S. & C. 1431.

The provision in question declares that it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors in the cases specified in the act.

To bring a person within tire operation of the act, the elements which constitute the offense must attach to him. He must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase, u by agent or otherwise,” was to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale.

In giving construction to the statute, the court below applied the rule in civil cases, which holds the principal, as to third persons, liable for the acts of his agent done within the general scope of his authority, irrespective of actual instructions that were unknown to the person dealing with the agent. In such case, as between the principal and a third person dealing with the agent on the faith of his apparent authority, the law conclusively presumes the actual authority of the agent to be what it openly appears to be; while, as between the principal and agent, the extent of the actual authority may be shown.

The rule as to the conclusive effect of the prima facie, or apparent authority of an agent, ought not to be applied to the enforcement of a criminal statute Where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that the criminal act was, in fact,, committed without his authority and against his instructions.

Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of crim-' inal offenses. All who participate in the commission of such offense, are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that the person accused in no way participated, in the commission of the criminal act, he ought not, by construction, to be made punishable for it.

Of course, the directions to the clerk or agent forbidding the sale must be in good faith to be of any avail. For,, however notorious or formal such directions may be,, they can have no effect if they are merely colorable. The fact of agency is to be determined by the real understanding■ between the principal and agent.

Our holding in this case is sustained by the decision of the Supreme Court of Connecticut, Barnes v. The State, 19’ Conn. 399; and by that of the Supreme Court of Massachusetts, Commonwealth v. Nichols, 10 Met. 259.

Judgment reversed, and canse remanded for a new trial..  