Commonwealth v. Brown

13 L.R.A. 195, 27 N.E. 776, 154 Mass. 55, 1891 Mass. LEXIS 58

Opinion

Morton, J.

The defendant in this case was charged with bringing into the city of Lowell certain intoxicating liquors, having reasonable cause to believe that the same were intended to be sold in said city, in violation of law. It was agreed at the trial that the city of Lowell granted no licenses at the time named in the complaint. It is well settled that one who aids another in committing a misdemeanor is equally guilty with one who actually commits it. Commonwealth v. Drew, 3 Cush. 279. Commonwealth v. Ray, 3 Gray, 441. Commonwealth v. Gannett, 1 Allen, 7. People v. Erwin, 4 Denio, 129. United States v. Gooding, 12 Wheat. 460, 475, 476. Regina v. Greenwood, 16 Jury 390. And this rule has been applied in this State to statutory offences arising under the liquor law, so called. Commonwealth v. Galligan, 144 Mass. 171, 173. Commonwealth v. Murphy, 145 Mass. 250. In the present case, there was no testimony directly connecting the defendant with the transportation of the liquors which he was charged with bringing into the city of Lowell. The next question is whether there was any evidence tending to show that he aided or abetted in any way in bringing them into that city; and we think there was such evidence.

The defendant was the agent in Lowell of the New England Despatch Company, which was a common carrier between Boston and Lowell and other places. He drove one of the wagons in Lowell, and hired and had charge of the other drivers there. In the ordinary course of the business of the company, some of the goods carried by it to Lowell were received and transported in the following way. Customers in Lowell wrote their orders, which were enclosed in sealed envelopes directed to certain parties in Boston, and sent or brought them to the company’s office in Lowell. Sometimes the defendant took them, and sometimes others in the office, but generally the cashier. These orders were put into a messenger’s box in the office, and were taken by the messenger to Boston, and there delivered to the various parties to whom they were directed. Another person, a driver in the company’s employ at Boston, called at the various places for the goods thus ordered, and collected and delivered them to the baggage master of the Boston and Maine Railroad, who placed them in the baggage car, under the charge of one of the company’s Lowell messengers, and on the way to Lowell they were checked off by the messenger on the way bills accompanying the goods. Neither the defendant nor any of the employees knew the contents of the orders, and the way bills did not describe the contents of the packages. When the goods arrived at Lowell they were delivered to the employees of the company, of whom the defendant was one, and they delivered them to the parties ordering them.

The liquors in question were brought into Lowell by the company in the ordinary course of business, as thus described, but the defendant had no personal knowledge that they had been ordered or were to be received at Lowell till they were in the company’s office at Lowell, and none of the other employees at the Lowell office knew of it till the messenger checked off the packages containing them, after the train had left Boston. There was evidence tending to show that a part of the liquors described in the complaint were marked “B Club,” and that the defendant told one of the government witnesses that liquors marked “ B Club ” were to be delivered to such persons in Lowell as should be designated by a man named Bartlett in Lowell; and a short time prior to September 8, 1890, the day named in the complaint, liquors marked “ B Club,” on the boxes of which were the company’s tags, had been found in places in Lowell where liquors were illegally sold. There was also evidence that the defendant knew, or had reasonable cause to believe, that a portion of the liquors in question were intended to be sold in Lowell, in violation of law, and that the express company had previously brought intoxicating liquors into Lowell with such knowledge, or with reasonable cause to believe that it was to be so sold. It also appeared that the defendant had been before cautioned by police officers at Lowell not to deliver liquor to illegal dealers therein, and had replied that he was not doing different from other express companies, and was not doing as much as some of the others. It further appeared, that teams under the defendant’s direction had been delivering liquors constantly since the first of May previous, and he stated in the course of his testimony that he had to see that things went on right; that he had charge of the teams and drove some himself ; that he first took charge after the goods reached Lowell; and that he meant by the reply above referred to that he was not bringing so much beer as the rest of the companies.

Upon this evidence, it was clearly competent for the jury to find, as they must have found under the instructions

Footnotes

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* of the court, that the despatch company undertook the business of transporting intoxicating liquors to Lowell indiscriminately as a general and habitual practice, where they knew or had reasonable cause to believe that the same were intended to be used in violation of law. And the jury must have further found, as they were also justified in doing under the instructions of the court, that the defendant knew that such was their course of business, and knowingly assisted and aided in the same by his own acts, and that the liquors in question, or a part of them, were brought into Lowell in pursuance of such general course of business in which the defendant so participated, and were in fact illegally transported, and that the defendant formed a necessary part of the machinery in carrying on this illegal business. The defendant’s first request, therefore, that upon the evidence he could not be convicted, was properly refused.

The defendant cannot excuse himself on the grounds set up in his remaining requests for rulings which were refused, namely, that he was not guilty unless he himself brought the liquors into Lowell or controlled the persons who did, or if the persons who brought it in were under the direction and control of the Boston superintendent of the company, or if the liquors were brought into Lowell in the ordinary course of business without his knowledge, and it was beyond his power to regulate or control the goods shipped to Lowell from Boston or other places. When the liquors arrived at Lowell he knew, or had reasonable cause to believe, that they were intended for sale in Lowell in violation of law. He had reason to know from the course of the business that they had been brought to Lowell from Boston, pursuant to an order from a dealer in Lowell to a dealer in Boston. And he knew that, when they arrived at Lowell, both the shipper in Boston and the orderer in Lowell expected that he would aid in forwarding them to their destinar tian in Lowell. He himself expected to do this, and to do it as one step in the transportation from the vendor in Boston to the purchaser and illegal seller in Lowell. In the strict sense of the words, therefore, he was aiding in bringing into Lowell intoxicating liquors with reasonable cause to believe that they were to be there sold in violation of law. He was one link in the chain of transportation from the shipper in Boston to the illegal seller in Lowell, and he knowingly and voluntarily occupied that position. It was not necessary that he should know at every moment and every step what every one else did who was engaged in aiding, or abetting, or committing the misdemeanor. So far as he was concerned, all that was necessary was that it should appear that he knowingly aided in the commission of the misdemeanor charged. If he did, he was liable. Regina v. Swindall, 2 C. & K. 230. For these reasons, a majority of the court think that there was no error in the instructions, and that the defendant’s requests were rightly refused.

.Exceptions overruled.

These instructions were as follows'. “ The first question is whether the liquors in question, or some of them, were brought into the city of Lowell in violation of this statute; that is, brought with the intent to have the same sold by another, or having reasonable cause to believe that the same was intended to be sold in violation of law. If the jury are satisfied beyond a reasonable doubt that they were so brought, the next question is, Is the defendant liable ? It is a well settled general principle of law that all persons who either commit a misdemeanor or knowingly and voluntarily aid, abet, assist, or encourage the commission thereof by any subordinate or collateral acts, are equally guilty as principals. I am not aware of any evidence in this case which directly connects the defendant with the bringing of this liquor into the city of Lowell, — any evidence directly connecting him. There is evidence tending to show that it was so brought by the New England Despatch Company, and that the defendant was the Lowell agent of the said company. Exactly what his service was has been put in evidence by himself. He called himself an agent, and the precise duties are to be settled upon testimony. It may not be precisely important, but it will show what the limit of his authority is; that, however, alone would not establish his liability. H nothing else appeared, the jury would be bound to return a verdict of not guilty. The defendant would not be responsible, either, for a casual violation of the statutes in which he had not knowingly participated. But if the jury are satisfied that the despatch company, through its appropriate officers and agents, for its own lucre and gain, undertook the business of transporting intoxicating liquors to Lowell indiscriminately, and as a general and habitual practice to transport such liquors where they knew or had reasonable cause to believe that the same were intended to be sold in violation of law, and the defendant knew that such was their course of business and knowingly assisted and aided in the same by his own acts, and these liquors, or any part of them, were brought into the city of Lowell in pursuance of such general scheme or course of business which the defendant so participated in, and these liquors were in fact so illegally transported, then he may be held liable therefor; that is to say, if he voluntarily went in and aided and encouraged a general business of transporting intoxicating liquors, then he is liable for specific acts of this kind because he aided and participated in the business which led to the taking of such goods. If he performed any necessary part of the machinery in carrying on this illegal business, then he became a participator in the business, and would be liable for acts done in the usual and ordinary course. It is for you to say whether this case, by the evidence, is brought within the law. If he was participating in the business, then he is answerable for the whole doing of the business.” said city and said owners do not agree any person aggrieved shall be entitled to have his damages ascertained by a jury upon petition to the county commissioners of Middlesex County, the proceedings upon which shall be like those provided for the recovery of damages in the taking of lands for highways.”