cision rendered by this court in Strain v. Young, 25 Wash. 578, 66 Pac. 64, where it was held that a statute differing from the constitution, but which was enacted in pursuance of the constitution, must be held to mean the same as the constitution, and where it was further said: "If other voters, who had the opportunity to exercise the 82 power of the ballot, declined to do so, they cannot now complain upon any principle of right or justice. Voters should be sufficiently interested in the public welfare to go to the polls at the time of an election and vote upon the propositions submitted. If they fail to do so, then, under our interpretation of the constitution, those who actually do the voting upon propositions submitted must determine them." The judgment is affirmed. Mount, C. J., Crow, Root, Hadley, Fullerton and Rudkin, The "Majority of the Electors" referred to in a constitution as requisite to the ratification of an amendment thereto, means the majority of the electors voting upon the question of amendment, and not a majority of all the electors of the state or of those voting at the election: Green v. State Board of Canvassers, 5 Idaho, 130, 95 Am. St. Rep. 169, and see the cases cited in the cross-reference note thereto. Tne Word "Elector," when used in a statute relating to the issuance of bonds by municipal corporations, and providing that they shall not be issued unless authorized by a majority of the electors, means voters who have registered so as to entitle them to vote at municipal elections or at any election held in pursuance of the laws and constitution of the state: Green v. Village of Rienzi, 87 Miss. 463, 112 Am. St. Rep. 449. STATE v. CONSTANTINE. INTOXICATING LIQUORS-Sale of to Minor by Agent.-A keeper of a saloon is guilty of selling liquor to a minor, although uch sale was made by his barkeeper, while such saloon-keeper was way from his place of business and had no knowledge of the sale. pp. 1044, 1045.) TRIAL-Reopening Case.-The reopening of a case for further estimony after a motion by defendant for a directed verdict rests n the sound discretion of the court. (p. 1046.) INTOXICATING LIQUORS-Sale of to Minor-Instructions. t is enough to instruct the jury that a saloon-keeper is responsible for the acts of his barkeeper in selling liquor to a minor without instructing as to the theory of the prosecution, or with the theory of the law or its policy in such case, but a case will not be reversed because such instructions were given, when they were not prejudicial. (p. 1046.) INTOXICATING LIQUORS-Sale of to Minor-Knowledge of Minority. To hold a saloon-keeper guilty of selling liquor to a minor, it is sufficient that it be shown that he knew or had such information from his appearance as would lead a prudent man to believe that the buyer was a minor. (p. 1047.) Dill & Thomas, for the appellant. Crass & Corbin, H. Crass, J. D. Atkinson, attorney general, and E. C. Macdonald, assistant attorney general, for the respondent. 103 RUDKIN, J. The appellant was convicted of the crime of knowingly selling intoxicating liquors to a minor without the written consent of the parent or guardian, and from the judgment and sentence of the court this appeal is prosecuted. The material facts are as follows: For some time prior to the twenty-sixth day of August, 1905, the appellant was the owner of a saloon in the city of Wenatchee, and was regularly licensed to sell intoxicating liquors by the municipal authorities. On the above date one James Dunlap, a bartender and servant of the appellant, sold a glass of beer to Norman Turner, a minor of the age of seventeen years, without the written consent of the parent or guardian of such minor. At the time of this sale the appellant was absent from the city of Wenatchee, and had no notice or knowledge of the sale. The fact that the sale was made through an agent appeared on the face of the information, and upon this ground a demurrer was interposed. The demurrer was overruled, and upon the trial the appellant offered to prove that he had instructed his bartenders and servants not to sell liquor to minors nor allow them in the saloon. To this offer an objection was interposed and sus tained. At the close of the state's case, the appellant requested the court to instruct the jury to return a verdict of not guilty, for the reason that it appeared from the uncontradicted testimony that no sale had been made by the appellant. but the request was refused. At the close of all the testimony the appellant again requested the court to instruct the jury that they must find that the sale was made by the appellant before they could return a verdict of guilty, but his request was likewise refused. These several 104 rulings gave rise to the principal assignments of error, and may properly be considered together. It is undoubtedly a general rule of law that there can be no crime without a criminal intent, and that one man is not criminally responsible for the acts of another, even though such other be his agent or servant, unless something more than the mere relation of master and servant is shown, but there are many exceptions to the rule. As said by the court in People v. Roby, 52 Mich. 577, 50 Am. Rep. 270, 18 N. W. 365, speaking through Cooley, chief justice: "I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations as this is impose criminal penalties, irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible." In People v. Lundell, 136 Mich. 303, 99 N. W. 12, the same court says: "The contention that the respondent is not responsible for the act of his barkeeper in keeping his saloon pen, but that the barkeeper is the only offender, has been nswered too often to leave it necessary to discuss the question t any length. The court has frequently held that this statte imposes upon the keeper of a bar or saloon the affirmative luty to see that it is closed during certain hours and on holiays, and that the neglect of this duty is an offense." In Carroll v. State, 63 Md. 551, 3 Atl. 29, the court said: When the agent, as in this case, is set to do the very thing hich, and which only, the principal's business contemplates, amely, the dispensing of liquors to purchasers, the principal ust be chargeable with the agent's violation of legal restricon on that business. His gains are increased, and he must ear the consequences. The fact that he has given orders not o sell to minors only shows a bona fide intent to obey the 5 law, which all the authorities say is immaterial in deterining guilt"': See, also, State v. Kittelle, 110 N. C. 560, 28 m. St. Rep. 698, 15 S. E. 103, 15 L. R. A. 694; Wharton Criminal Law, 10th ed., sec. 1503, and cases cited. There as, therefore, no error in the several rulings complained of. When the state first rested its case, the appellant interposed motion for a direct verdict. The court thereupon reopened the case and permitted the state to offer further testimony. This ruling is assigned as error. The reopening of a case for further testimony after a motion of this kind has been interposed rests in the sound discretion of the trial court, and no abuse of discretion is shown here. Exceptions were taken to nearly all of the instructions of the trial court, twenty-two in number. The second instruction excepted to merely sets forth the charge in the language of the information. The seven succeeding instructions are of similar import. The fourth and fifth are fair samples of the rest, and are in the following language: "4. This prosecution proceeds upon the theory that the physical and mental identity of Dunlap, the servant, is merged in that of Constantine, the master, that these two persons are, for the purposes of the law, but one person, and that that person is Constantine, the master. In other words, that where Dunlap sells liquor for Constantine, under a liquor license issued to Constantine, that Dunlap's hand is Constantine's hand, that Dunlap's mind is Constantine's mind, and that Dunlap's acts and knowledge are Constantine's acts and knowledge. "5. This theory of the law is based upon the doctrine that where a license to sell liquor is granted to A no one whomsoever has any lawful right to sell any liquor whatever under such license except A himself, and that if he desires to relieve himself from giving personal attention to the business by employing B to do it for him, and thus sets B to doing that which the law only authorizes A to do, then it can only be lawfully permitted on the theory that B, in legal contemplation becomes A himself, for if it were otherwise 106 B would violate the law as well when he sold to persons entitled to buy as when he did not." These requests should have been refused. The jury had no concern with the theory of the prosecution, or with the theory of the law or the policy of the law. It was enough for them to know that the saloon-keeper is responsible for the acts of his bartender, and this they might have been told in a single sentence. But while the instructions were out of place and might better have been omitted, we cannot see that they were prejudicial. The tenth instruction correctly states the issue in the case. The twelfth instruction relates to the presumption of inno cence and is, we think, free from objection. The thirteenth instruction defines a reasonable doubt in substantially the language of this court. The fourteenth, fifteenth and sixteenth instructions defined the term "knowingly" as used in the statute. The substance of these instructions is that if Dunlap knew that Turner was a minor, or had such information, from his appearance or otherwise, as would lead a prudent man to believe that he was a minor, and if followed by inquiry must bring knowledge of that fact home to him, then the sale was made knowingly; and we think this is a correct statement of the law. The evidence is sufficient to sustain the verdict, and the judgment is accordingly affirmed. Mount, C. J., Fullerton, Hadley, Dunbar, Crow and Root, JJ., concur. A Licensed Liquor Dealer is Criminally Liable for the unlawful sale of intoxicants to a minor: Snider v. State, 81 Ga. 753, 12 Am. St. Rep. 350; and the fact that the sale is made without his knowl edge and contrary to his instructions is no defense: State v. Kittelle, 110 N. C. 560, 28 Am. St. Rep. 698. Compare, however, Commonwealth v. Stevens, 153 Mass. 421, 25 Am. St. Rep. 647. One Who Sells Liquor to a Minor, though innocently ignorant of the fact of minority, incurs the penalty of the law forbidding such sales: See People v. Curtis, 129 Mich. 1, 95 Am. St. Rep. 404, and cases cited in the cross-reference, note thereto. SULLIVAN v. WOOD & COMPANY. [43 Wash. 259, 86 Pac. 629.] MASTER AND SERVANT-Negligence-Safe Appliances.-A ervant has the right to rely upon the safety of the appliance selected nd adjusted by his master, accompanied with assurances as to its ufficiency, the immediate placing and adjustment having been made vhile the servant was otherwise engaged, and he being immediately hereafter called to action in doing the work directed; and if an njury happens to the servant traceable to such acts of the master, e is guilty of negligence. This is a question for the jury to deternine. (p. 1050.) MASTER AND SERVANT-Contributory Negligence of Serrant.-If a servant assisting in the construction of a gas-tank is reuired to stand upon a narrow walk-around, twenty-six feet above he ground, and underneath a girder that is being raised, and while hus employed, and while he could not look up all the time, is injured y the falling of a wedge used to adjust the girder, and placed in osition by the master, the question of the contributory negligence f the master is for the jury. (p. 1050.) |