HISAW v. STATE

HISAW v. STATE
1979 OK CR 140
603 P.2d 1167
Case Number: M-79-89, M-79-90
Decided: 12/07/1979
Oklahoma Court of Criminal Appeals

Appeals from the District Court, Tulsa County; Kenneth L. Brune, Judge.

Harvey Price Hisaw and Anna Christine Jones and Aprille Russell, appellants, were charged and convicted of the offense of Unlawful Sale of an Alcoholic Beverage; punishments were fixed at fines of Two Hundred Dollars ($200.00), One Hundred Dollars ($100.00) and Two Hundred Dollars ($200.00), respectively, and appeal. AFFIRMED.

Hall, Estill, Hardwick, Gable, Collingsworth & Nelson by Frank M. Hagedorn, Tulsa, for appellants.

Jan Eric Cartwright, Atty. Gen., Duane N. Rasmussen, Asst. Atty. Gen., Richard Parrish, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

[603 P.2d 1168]

¶1 Appellants, Harvey Price Hisaw and Anna Christine Jones, Case No. CRM-78-1041, and Harvey Price Hisaw and Aprille Russell, Case No. CRM-78-1042, hereinafter referred to as defendant Hisaw, defendant Jones and defendant Russell, were charged, tried and convicted in the District Court, Tulsa County, for the offense of Unlawful Sale of an Alcoholic Beverage, in violation of 37 O.S. 1971 § 505 [37-505]. Defendant Hisaw's punishment was fixed at a fine of Two Hundred Dollars, Defendant Jones' punishment was fixed at a fine of One Hundred Dollars, and defendant Russell's punishment was fixed at Two Hundred Dollars. We will consolidate appeals numbered M-79-89 and M-79-90 as the assignments of error are identical in each case.

¶2 At the non-jury trial, the parties stipulated that they were employed at the Barrister's Club in Tulsa, defendant Hisaw as a bartender and defendants Jones and Russell as waitresses. Defendant Hisaw mixed drinks which were served to the officers who paid defendants Jones and Russell. The parties further stipulated that the defendants did not own any of the liquor served to the officers and that the money taken from them was transferred as a matter of employment to the Barrister's Club.

¶3 The defendants assert as the sole assignment of error that the trial court erred in overruling their demurrers and motions to dismiss because "section 505-575 of Title 37 of the Oklahoma Statutes cover the business of the liquor industry only, and do not apply to isolated transactions by employees who serve alcoholic beverages, but who are not alleged to be owners of an establishment selling liquor by the drink." This argument is patently frivolous. Title 37 O.S. 1971 § 505 [37-505] provides in part:

"No person shall manufacture, rectify, sell, possess, store, import into or export from this state, transport or deliver any alcoholic beverage except as specifically provided in this act . . ."

Title 21 O.S. 1971 § 172 [21-172] provides:

"All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals."

It is clear from the foregoing statutes that the employer of the defendants was engaged in the unlawful business of selling intoxicating liquor in violation of 37 O.S. 1971 § 505 [37-505]. By mixing, serving and collecting payment for the drinks, the defendants aided and abetted in the commission of the offenses and as such were principals within the meaning of 21 O.S. 1971 § 172 [21-172]. The judgments and sentences rendered in the District Court of Tulsa County in Cases Numbered CRM-78-1041 and CRM-78-1042 are accordingly AFFIRMED.

BRETT, J., concurs.

CORNISH, P.J., not participating.