Commonwealth v. Briant

• Citation: 142 Mass. 463,8 N.E. 338
• Parties: COMMONWEALTH v. BRIANT or O'BRINE.
• Decision Date: 21 October 1886
• Court: United States State Supreme Judicial Court of Massachusetts

142 Mass. 463

8 N.E. 338

COMMONWEALTH

v.BRIANT or O'BRINE.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1886.

Complaint for selling intoxicating liquors to one Rollins, a minor. Trial in the superior court, before THOMPSON, J., where a verdict of guilty was returned, and to the refusals of the court to instruct the jury as requested by the defendant the defendant alleged exceptions. The facts appear in the opinion.E.J. Sherman, Atty. Gen., for the Commonwealth.

The rulings, and refusals to rule, of the court were correct. The instructions given by the court concerning the defendant's liability for acts of his agent were sufficiently favorable to him, and fall within the requirements of Com. v. Wachendorf, 141 Mass. 270; S.C. 4 N.E.Rep. 817. It was a question for the jury to decide whether the defendant's instructions to his bartender were made in good faith. Com. v. Wachendorf, ubi supra. Whoever has a license, whether he conducts the business personally or by his servants, is bound, at his own peril, to keep within the terms of it. Com. v. Holmes, 119 Mass. 197;Com. v. Uhrig, 138 Mass. 492;Com. v. Kelley, 140 Mass. 441; S.C. 5 N.E.Rep. 834. The evidence, being conflicting, was rightly left to the jury, under proper instructions.

John R. Thayer, for defendant.

It cannot be assumed that a principal, who authorizes a legal and proper act to be done by an agent, is responsible for a criminal act done by the agent while performing the legal and proper one, unless necessary and natural for the performance of the legal act. The instruction given to the jury that, “if the servant sold liquors for the defendant, in the regular course of his business, the defendant may be charged criminally for the act of his servant in selling intoxicating liquors in violation of law,” was equivalent to saying that, if the defendant employed an agent or servant to tend bar and sell liquor for him, and that that was his regular business, that they might find the defendant guilty for any sales in violation of law; that there was an assumption against the defendant that he authorized the illegal, as well as the legal, acts of his agent. This assumption does not follow. Com. v. Putnam, 4 Gray, 16;State v. Burke, (R.I.) 4 Atl.Rep. 761, (May 25, 1886.) The defendant might be liable in civil damages for his agent's acts, but never for criminal intent. George v. Gobey, 128 Mass. 289.

HOLMES, J.

This is a complaint for unlawfully selling intoxicating liquors to a minor. The court assumed that the case was governed by Com. v. Wachendorf, 141 Mass. 270,² and instructed the jury that a sale by the defendant's bar-tender might be explained by showing that it was not authorized by the master, or was done in violation of his orders and against his will. On the question of authority, the defendant asked for a ruling that “agency for any other purpose will not warrant a presumption or inference of agency to illegally sell liquor.” The court refused the ruling, and instructed the jury, in substance, that a sale of intoxicating liquors by a bartender in his master's shop, and in the regular course of his master's lawful business, is prima facie a sale by the master, although the sale is an illegal sale, but that such a sale may be explained by showing that it was not authorized. Even if the ruling requested was wrong, we think the instruction given was too far in an opposite direction; for, although we should admit that a jury might be warranted in inferring that such a sale was authorized, it would not follow that a court could rule that there is a presumption of fact that it was so, which is the purport of the instruction, fairly construed. The proposition that there is evidence for the jury to consider is not identical with the proposition that the evidence, if believed, raises a presumption of fact. The proposition that there is evidence to be considered imports that there may be a presumption of fact; but, generally, it must be left to the jury to say whether there is one, and, in many cases, that is the main question which they have to decide.

The facts that a man employs a servant to conduct a business expressly authorized by statute, and that the servant makes the unlawful sale in the course of it, do not necessarily overcome the presumption of innocence, merely because the business is liquor selling, and may be carried beyond the statute limits. See Com. v. Putnam, 4 Gray, 16;Com. v. Dunbar, 9 Gray, 298. It is true that a master would be liable civilly for such a sale as supposed in the instruction, but his civil liability exists even when he prohibited the sale; and therefore it does not stand upon a presumption that he authorized the sale, but upon the general ground for a master's liability for the unauthorized torts of his servant, whatever that may be. George v. Gobey, 128 Mass. 289;Roberge v. Burnham, 124 Mass. 277; Pub.St. c. 100, § 24. See Byington v. Simpson, 134 Mass. 169, 170.

Com. v. Holmes, 119 Mass. 195, cited for the prosecution, went no further than to decide that evidence that the defendant's son and clerk sold intoxicating liquors in a public house, kept by the defendant, was evidence of a sale by the defendant sufficient to be submitted to a jury. See, also, Com. v. Edds, 14 Gray, 406. Nothing was said as to a presumption of fact. The evidence, too, was stronger than in the case at bar; for there the defendant set up no license,—any sale was unlawful,—and the question was whether the defendant gave authority to his clerk to sell at all. It might well be thought that the clerk would...