Commonwealth v. Joslin

• Decision Date: 03 April 1893
• Parties: COMMONWEALTH v. JOSLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 482

33 N.E. 653

COMMONWEALTH v. JOSLIN.

Supreme Judicial Court of Massachusetts, Bristol.

April 3, 1893

COUNSEL

Charles N. Harris, Second Asst. Atty. Gen., for the Commonwealth.

J. & R.C. Brown, for defendant.

OPINION

On Petition to Establish Bill of Exceptions.

BARKER J.

The defendant was found guilty upon certain counts of the indictment, and seasonably filed a bill of exceptions, which was disallowed by the justice of the superior court in a certificate stating in detail the amendments which he considered necessary to make the bill conformable to the truth. The defendant then filed, in this court, a petition to establish the truth of the allegations in his bill of exceptions, and a commissioner was appointed, whose report in favor of establishing the same came before the full court at the sitting in Bristol county in October, 1892. At the hearing before the commissioner the defendant's counsel assented to the corrections and additions suggested in the certificate disallowing the bill of exceptions, but the commissioner failed to incorporate them in the bill established by him, owing to a doubt whether it was competent and proper for him to add them to the bill. At the hearing before the full court the right and duty of the commissioner to consider the certificate was argued, and the defendant's counsel consented that the corrections and alterations should be incorporated in the bill of exceptions to be established, rather than have the matter recommitted to the commissioner. The court took the matter under advisement and, being of the opinion that it was the duty of the commissioner to consider the statements of the certificate disallowing the bill, ordered that the bill of exceptions with the corrections and amendments agreed upon, be established, and that they stand for argument at the November sitting of the court for the commonwealth in Boston.

On the Merits.

BARKER, J.

The defendant contends that a license of the sixth class gives to a druggist who complies with the requirements as to the time, place, and manner of making sales the right to sell in all cases, save to prohibited persons, although he may know that the liquors are in fact bought for a purpose for which he has no license to sell, and although they are delivered to a minor. But it is plainly the intention of the statutes (Pub.St. c. 100, §§ 1, 2, 9, 10, 18; St.1887, c. 431) that sales of intoxicating liquors by retail druggists and apothecaries shall be made only for medicinal, mechanical, or chemical purposes; and a construction which should legalize sales made by them of liquors which they know or believe are to be used as a beverage, and which are bought for that purpose, could be reached only by disregarding the evident purpose of the legislature. To prevent sales under the false pretense of use for medicinal, mechanical, or chemical purposes, the statute of 1887, (chapter 431) prohibits to these dealers any license except one of the sixth class, requires a certificate of the purchaser stating the use for which the liquor is wanted, the keeping of a book containing the particulars of each sale, and the cancellation and preservation of all certificates and prescriptions; and also imposes a penalty for making a false and fraudulent certificate or prescription. If this relieved the druggist from responsibility for selling in bad faith, knowing or believing that the certificate or prescription was false and fraudulent, and that the liquors were to be used as a beverage, it would sanction subterfuges which would go far to render all restrictive legislation futile. To show that such was not the intention of the legislature, it is not necessary to read anything into the statutes, or to construe them otherwise than with strictness. Taken together, they authorize retail druggists and apothecaries to sell intoxicating liquors only when they are to be used for medicinal, mechanical, or chemical purposes; and not to sell them whenever a purchaser makes the statute certificate. The provision that "sales of intoxicating liquors of any kind by retail druggists and apothecaries for medicinal, mechanical, or chemical purposes shall be made only upon the certificate of the purchaser" (St.1887, c. 431, § 2) is to be read with the general prohibition, "No person shall sell, or expose or keep for sale, spirituous or intoxicating liquors, except as authorized," (Pub.St. c. 100, § 1,) which forbids all sales of such liquors without due authority, (Com. v. Ramsdell, 130 Mass. 68;) and retail druggists and apothecaries cannot be licensed to sell them for a beverage. Even if the general doctrine which governs such sales, that guilty knowledge is not essential to the offense, (Com. v. Julius, 143 Mass. 132, 8 N.E. 898, and cases cited,) is not to be applied, their sales made in bad faith, for an unauthorized purpose, are illegal. But unless one licensed to sell for an authorized purpose, and who honestly intends to comply with the law, sells at his peril if the purchaser buys for a purpose not authorized, the charge of making an illegal sale necessarily includes the charge that the vendor believed that the sale was for a purpose not authorized, and his belief is therefore material. So, also, is the intention of the purchaser, because if he buys for an authorized purpose, although the vendor intends to break the law, there is no crime. Hence the requests based upon the theory that the intention, knowledge, or means of knowledge of the vendor as to the real purpose of the transactions between him and the purchasers were immaterial, were incorrect in law, and rightly refused; and the evidence objected to was all relevant, either to the belief of the vendor or to the purpose of the purchasers, and was rightly admitted. This would dispose of the exceptions so far as they relate to the count for illegal keeping, if the instructions given had contained no error.

The sales to other than prohibited persons were not illegal if in making them the defendant complied with the statute requirements, and acted in good faith, honestly intending to keep within the authority given him by the law; and he could not do this unless he believed the liquors were wanted for an authorized purpose. What in the discussion of propositions of criminal law is often called the "intention" is an element in the decision of this question, which is one of fact, and in dealing with it the distinction between belief or knowledge and reasonable cause to know becomes important. Neither knowledge, belief, nor intention can, in the nature of things, be proved except by inference. Reasonable cause to know is not an equivalent to knowledge. Lindsey v. Stone, 123 Mass. 332; Carroll v. Hayward, 124 Mass. 120, and cases cited. It raises a strong inference of knowledge or of belief, but it is nevertheless consistent with the absence of belief as well as of knowledge, and even with the existence of a belief contrary with the real fact; and this, too, on the part of one who has a duty to know. The mind may be preoccupied or slow, and the thought necessary to produce comprehension dormant. The inference from proof of a single circumstance which would be reasonable cause to know must be weaker than that to be drawn when the mind is shown to have frequent occasion to consider similar facts. Not only are knowledge and reasonable cause to know, and all circumstances tending to prove either, relevant to the question of belief in such a case as the present, but reckless or negligent conduct in the transaction may be shown. If one is shown to have long had reasonable cause to know and frequent occasion to consider the circumstances which constitute such reasonable cause, the inference of belief becomes almost imperative; and yet it is an inference of fact, and not of law, and is for the jury. In the present case the frequency of the defendant's sales, during a long period, to persons whose appearance and condition might indicate that they bought the liquors for a beverage, was an important fact, and may well be characterized as giving him reasonable cause to know the real purpose of the purchasers. But the jury are to be allowed to make or to decline to make the inference. The charge should have explained the distinction between that knowledge or belief on the part of the defendant, proof of which would have required the jury to find him guilty of sales made in bad faith, and with the belief that they were not for authorized purposes, and that reasonable cause to know which might be consistent with his innocence. This was not done, but the jury were instructed that, if the defendant either knew, or had reasonable cause to know, that the liquors were not wanted for the purposes stated in the certificates, the sale would be illegal. It is true that they were also told that if he believed that a sale was for an authorized purpose he would not be guilty, and also that if he was deceived as to the purpose he would not be guilty. These last instructions, so far as they went, were correct, and, if they stood alone, would perhaps have been sufficient. But the statement that the defendant was to be convicted if he knew, or had reasonable cause to know, that the sales were for purposes not authorized, was so often repeated that the jury may have been misled. On this point the exception to the charge must be sustained, and this requires us to set aside the verdict upon the first count.

The...