Commonwealth v. Kennedy

119 Mass. 211, 1875 Mass. LEXIS 120

• Court: Massachusetts Supreme Judicial Court
• Decided: December 16, 1875
• Status: Published

Opinion

Colt, J.

The liquors kept for illegal sale were found in a shop which was a portion of a dwelling-house owned by the de fendant and his wife, who acquired title by a deed in which both were named as grantees. They were therefore both seised of the entirety, and the husband was entitled during coverture to the rents and profits. Shaw v. Hearsey, 5 Mass. 521.

The fact that the wife there carried on an illegal traffic, and that he had no interest in the stock in trade or in the profits, does not alone exempt the defendant from the charge of keeping a tenement for the illegal keeping and sale of intoxicating liquors. It was declared in Commonwealth v. Barry, 115 Mass. 146, that the statutes which give 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 control his own household; that he has power to prevent his wife from using his house for an illegal business or purpose; that 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 that the fact that she is carrying on the business on her own account does not release him from liability.

It is to be assumed in the case at bar, although not distinctly stated, that the place in question was the dwelling-house occupied by the defendant and his wife, and that the defendant permitted the illegal conduct of the wife; and that proper instructions were given to the jury upon these points.

The court properly refused the single instruction requested.

Exceptions overruled,