#### Olson, Plaintiff in error, vs. The State, Defendant in error.

*September 17*—

October *4, 1910.*

*Intoxicating liquors: Sale on Sunday: Evidence: Questions for jury: Instructions: Sale by employee contrary to orders.*

1. Upon the conflicting evidence in this case as to whether the beverage sold by defendant on Sunday was beer or ginger ale, the question was one for the jury and their finding should not be-disturbed.

2. Such question, in view of admitted facts, was the only question in issue, and the jury were properly so instructed.

3. The proprietor of a saloon whose barkeeper sells liquor therein-on Sunday is guilty of a violation of sec. 1564, Stats. (1898), even though the sale was contrary to his positive instructions.

Ebeoe to review a judgment of the circuit court for Elorence county: Johst Goodlawd, Circuit Judge.

*Affvi'med.*

The plaintiff in error (hereinafter called defendant) was-convicted under sec. 1564, Stats. (1898), of selling and giving away intoxicating liquors on Sunday. The facts will sufficiently appear from the opinion. ■ ■

Vibtje, J.

1. The first error assigned is that the evidence does not sustain the verdict. There is a direct conflict in the testimony as to what was drank in the saloon on the night in question. The witness Sherwin, on behalf of the state, testified it was beer; that he saw the men drink, and examined the glasses on the bar after the drinking had taken place, and,, from such examination, he knew it was beer. Two witnesses-for defendant, who are claimed by the- state to have drank beer, testified that it was ginger ale and not beer that they *414drank. The third witness does not recollect that be drank anything that night. On this state of the testimony it was peculiarly a question for the jury to find what the fact was. Their finding, sustained as it is by the trial court in denying a motion for a new trial, will not be set aside unless this court can say that there is no credible evidence to support it, or unless it is inconsistent with facts conclusively proved. *Schuster v.*State, 80 Wis. 107, 115, 49 N. W. 30; *Van Haltren v. State,*142 Wis. 143, 124 N. W. 1039. The court can say neither.

2. It is urged that the trial court erred in instructing the jury as follows:

> “It is the law of the state of Wisconsin, that if a saloon-keeper employs another person to act for him in the conduct ■of his business, and such employee or bartender, as he is usually called, violates the law relating to excise, that the sa-loonkeeper is guilty of the violation as if he had been personally present or had done the act himself. In other words, the act of the barkeeper is the act of his employer. This is true even if the barkeeper does the act against the positive instructions of the saloonkeeper. In this case it makes no difference with the legal guilt of the defendant if you find that the sale was made and that the barkeeper was instructed not to make it.”

We perceive no error in this instruction. Sec. 1564, Stats. (1898), imposes a penalty upon the acts therein described irrespective of the motive or intent of the person doing them. Its purpose is.to regulate the conduct of the liquor business .and to prohibit the specified acts whether done by the licensee himself as principal or by his bartender as agent. In such case the principal is as responsible for the acts of his agent as though they were done by himself. He cannot be screened behind the fact that he has given his agent positive instructions not to do them. *State ex rel. Conlin v. Wausau,*137 Wis. 311, 314, 118 N. W. 810.

3. The further contention is made that the trial court *415■erred in instructing tbe jury tbat tbe only question in tbe ■case was:

> “What was tbe beverage wbicb it is conceded those men 'drank at tbat time? If you find tbat it was ginger ale, as ■claimed by tbe defendant, then you must return a verdict of not guilty. If, on tbe other band, you find beyond a reasonable doubt tbat it was beer, then your verdict should be guilty.”

It was admitted upon tbe record tbat tbe defendant was a licensed saloonkeeper; that the day in question was Sunday; tbat tbe bartender was tbe man who then bad charge of the premises, and tbat be gave tbe men something to drink. Tbe only question in issue, therefore, was, What was tbe beverage given tbe men to drink? Manifestly tbe instruction was proper.

*By the Gowrt.*— Judgment affirmed.