(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 of fence, 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 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 Burrows, 2686; Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Stevens, 155 Mass. 291.

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.

100 Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Stevens, 155 Mass. 291.

where a bookseller knowingly permits his servant to sell libelous or obscene publications,110

(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 necessary to render one guilty of a crime.111

A jailer would be responsible for

110 Rex v. Almon, 5 Burrows, 2686.

111 Rex v. Huggins, 2 Ld. Raym. 1574; People v. Parks, 49 Mich. 333, Beale's Cas. 376; State v. Bacon, 40 Vt. 456; Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Briant, 142 Mass. 463; Com. v. Stevens, 153 Mass. 421; State v. Dawson, 2 Bay (S. C.) 360; State v. Smith, 10 R. I. 258; and other cases specifically cited in the notes following.

112

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.1 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 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 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

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

113 Rex v. Huggins, supra.

114 People v. Parks, 49 Mich. 333, Beale's Cas. 376; Com. v. Nichols, 10 Metc. (Mass.) 259; Com. v. Putnam, 4 Gray (Mass.) 16; Com. v. Wachendorf, 141 Mass. 270; Com. v. Stevens, 155 Mass. 291; Com. v. Stevens, 153 Mass. 421; Com. V. Hayes, 145 Mass. 289; 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; State v. Baker, 71 Mo. 475; State v. Heckler, 81 Mo. 417; State v. Shortell, 93 Mo. 123; State v. McCance, 110 Mo. 398 (overruling State v. McGin

therein.115 And 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

(d) Negligence of Principal or Master.—

nis, 38 Mo. App. 15); Anderson v. State, 22 Ohio St. 305; 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; State v. Gaiocchio, 9 Tex. App. 387. For cases in which the contrary has been held, see note 127, infra.

113 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 Ohio St. 305; State v. Wentworth. 65 Me. 234.

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

(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 re

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, 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