Commonwealth v. Barry

115 Mass. 146, 1874 Mass. LEXIS 173

• Court: Massachusetts Supreme Judicial Court
• Decided: June 18, 1874
• Status: Published

Opinion

Morton, J.

The motion to quash was properly overruled. The ground in support of it which the defendant now insists upon, that “ neither the complaint nor warrant is duly certified and attested,” cannot be sustained. The attestation by the clerk of the Police Court, at the end of the record, is a sufficient attestation of all the proceedings. Commonwealth v. Ford, 14 Gray, 399. Commonwealth v. Cavey, 97 Mass. 541. The objection that the recognizance taken in the Police Court was not transmitted to the clerk of the Superior Court does not appear to be sustained by the facts. The bill of exceptions does not show that it was not duly transmitted. But if it was not, it is difficult to see how this would affect the jurisdiction of the Superior Court.

The only remaining question is as to the ruling of the presiding judge that “ the defendant was liable to be convicted if the jury found the wife kept the liquor in the presence of the husband with intent to sell the same and the husband had knowledge of that fact and of her intent and did not use reasonable means to prevent her.” The evidence on behalf of the government is not reported, and therefore the bill of exceptions does not fully show the state of facts proved at the trial to which the instruction was applicable. It does not show, by any direct statement, whether the place where the liquors were kept for sale was the house of the defendant or some other tenement. But the burden is upon the excepting party to present all the facts which support his exceptions, and we cannot assume that the place was a tenement separate and distinct from the defendant’s house, in the absence of any statement in the bill of exceptions from which that fact-can fairly be inferred. On the contrary we must assume that the instructions were given in view of the fact that the place where the wife of the defendant carried on the business of a retail liquor dealer was the house of the defendant.

Upon this aspect of the case we are of opinion that the instructions were correct.

The statutes which give to a married woman the right to carry on any trade or business on her sole and separate account, do not deprive a husband of his common law right to regulate and control his own household. He has the power to prevent his wife from using his house for an illegal business or purpose. If he permits her to use it for the illegal business of keeping intoxicating liquors for the purpose of sale, he becomes a participator in the misdemeanor, and is liable to an indictment or complaint for it. And the fact that she was carrying on the business on her own account, and has filed a certificate to that effect under the statute, does not release him from this liability. Commonwealth v. Wood, 97 Mass. 225. Exceptions overruled.