Commonwealth v. Gould

33 N.E. 656, 158 Mass. 499, 1893 Mass. LEXIS 337

• Court: Massachusetts Supreme Judicial Court
• Decided: April 3, 1893
• Status: Published

Opinion

Barker, J.

1. Evidence that the person named in the indictment as Henry Bishop was commonly known by that name was competent upon the question of variance, which was one of fact for the jury. Commonwealth v. Gormley, 133 Mass. 580, and cases cited. Commonwealth v. Caponi, 155 Mass. 534.

2. As the sale of intoxicating liquors to a minor is illegal, whether made to him as a principal or as an agent, evidence that the purchase was for his mother who was sick, was immaterial, and was rightly excluded. Commonwealth v. O'Leary, 143 Mass. 95. O'Connell v. O’Leary, 145 Mass. 311, 313. Commonwealth v. Joslin, ante, 482.

3. Instructions that the defendant could not be convicted of illegal sales to Bishop if he had the appearance of being of full age, and if the sales to him were made in good faith, in the honest belief that he was an adult, were rightly refused. Knowledge that the purchaser was a minor was not essential to the offence. The defendant was bound at his own peril to keep within the condition of his license, that no sale or delivery should be made to a minor, “either for his own use, the use of his parent, or of any other person.” Pub. Sts. c. 100, § 9, cl. 4. Commonwealth v. Hallett, 103 Mass. 452. Commonwealth v. Barnes, 138 Mass. 511. Commonwealth v. Julius, 143 Mass. 132. Commonwealth v. Savery, 145 Mass. 212. Commonwealth v. Daly, 148 Mass. 428.

4. It is the intention of the statutes that sales of intoxicating liquors shall be made by retail druggists and apothecaries only for medicinal, mechanical, or chemical purposes. Pub. Sts. c. 100, §§ 1, 2, 9, 10, 18. St. 1887, c. 431. Commonwealth v. Joslin, ante, 482. Sales of liquors to be used as a beverage made by them with the knowledge or belief that the liquors are to be so used are illegal, and the rulings that the certificate or prescription in every case legalized the sale were rightly refused.

5. As such illegal sales, if made in good faith, without knowledge or belief that the liquors were in fact intended to be used as a beverage, are consistent with the absence of any intention on the part of the seller to violate the law ; and as in the opinion of the majority of the court there is no crime if the liquors are in fact bought for an authorized purpose, although the seller believes that they are to be used as a beverage, the government to sustain the charge made in the first count must, in the opinion of the majority of the court, prove both that the sales were illegal and made with guilty knowledge or belief. The evidence admitted under the defendant’s objection was competent for one or both of these purposes. See Commonwealth v. Joslin.

6. The testimony of such of the purchasers as were asked by the government for what purpose their purchases were made was in the opinion of a majority of the court competent. If they had made false and fraudulent certificates, the government was not responsible for them, and could show their falsity. The witnesses themselves did not decline to answer the questions, and could do so only on the ground that their answers might tend to criminate themselves. The objection on that ground could not avail the defendant, and was not in fact taken by him at the trial.

7. The instruction “ that if the defendant sold intoxicating liquor to persons knowing, or having reasonable cause to know, that such liquor was not purchased for either medicinal, mechanical, or chemical purposes, such sales would be illegal,” is erroneous, and was so held in Commonwealth v. Joslin, for the reason that reasonable cause to know is not equivalent to belief or knowledge. In the present case the instruction is to be read in connection with the third and ninth prayers, which were given as requested, and with the other instructions given. These were to the effect that, while sales knowingly made in violation of law were evidence of an illegal keeping, if the defendant kept liquor not intending to sell it illegally and in making sales believed them legal such sales would not be evidence of an intent to sell in violation of law, nor of a keeping with intent to sell in violation of law. But, upon the whole, we are of opinion that the erroneous ruling may have misled the jury upon the count for illegal keeping, and that the verdict upon that count ought for this reason only to be set aside.

We find no error affecting the verdicts of guilty upon the sixth and seventh counts for sales to Henry Bishop, and the verdicts upon these counts are to stand.

Verdict of guilty upon the first count set aside.

Verdicts on the sixth and seventh counts to stand.