In Re Souza

PLUMMER, J.

On the fifth day of October, 1923, the petitioner was bound over to the superior court of the county of Sacramento by the police judge of the city of Sacramento to answer the charge of selling liquor in violation of what is generally known and called the Wright Act (Stats. 1921, p. 79). The petitioner seeks his discharge herein on the ground that he was held to answer for such alleged offense without probable cause, basing his petition upon subdivision 7 of section 1487 of the Penal Code.

The testimony, as set out in the transcript, shows the following state of facts: During the month of July, 1923, the defendant applied to the proper officers of the city of Sacramento for and obtained a license for conducting a soft-drink establishment at 218 L Street, in the city of Sacramento ; that this license was in full force and effect at the time of the alleged offense for which petitioner was arrested; that on or about the third day of September, 1923, at about 7:30 P. M., two officers visited the establishment just referred to and found in the place a bar behind which was a man engaged in dispensing soft drinks. The two officers referred to requested that they be served with something stronger than soft drinks and, in response to such request, each of said officers was served with a drink of liquor known as and called jackass brandy. A portion of the drink so served was retained by the officers and upon being analyzed was found to contain 26.26 per cent of alcohol by volume, which is considerably more than the quantity allowed by law.

At the time the officers visited the place of business referred to the defendant was not present and the charge

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against Mm is founded upon the theory that the principal, under such circumstances, is chargeable for the act of his agent, and that the circumstances tend to show that the agent was acting within the scope and authority of Ms employment and, therefore, with the consent of the principal.

The question before the court is not whether the evidence in this ease is sufficient to warrant a conviction, but, simply whether there is sufficient testimony to justify the committing magistrate in coming to the conclusion that probable cause existed for believing the defendant guilty. That the crime was committed by the bartender is without question and the only fact remaining is, is there sufficient evidence to indicate that he was acting in the capacity of the defendant’s agent and not simply on his own responsibility?, The law seems to be well settled that in such cases the mere sale of intoxicating liquor by an agent is not sufficient, in and of itself, to warrant a conviction of the principal, but if the attendant circumstances are such that the court or jury may reasonably infer that the sale was made with the consent or knowledge of the principal, then, and in that case, he is equally guilty with the agent and may be held criminally liable.