Commonwealth v. Riley

• Decision Date: 19 June 1907
• Citation: 81 N.E. 881,196 Mass. 60
• Parties: COMMONWEALTH v. RILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 60

81 N.E. 881

COMMONWEALTH v. RILEY.

Supreme Judicial Court of Massachusetts, Plymouth.

June 19, 1907

COUNSEL

T. E Grover, for the Commonwealth.

F. M Bixby, for defendant.

OPINION

LORING J.

We assume that the crime created by Rev. Laws, c. 100, § 50, is one of those crimes where the defendant acts at his risk, and where it is no excuse that he made an honest mistake, like the crimes before the court in Commonwealth v. Boynton, 2 Allen, 160, Commonwealth v. Uhrig, 138 Mass 492, and Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647, s. c. 155 Mass. 291, 29 N.E. 508.

In such cases the defendant is liable in case he does the act although he did it under an honest mistake. Commonwealth v. Boynton, 2 Allen, 160; Commonwealth v. Stevens, 153 Mass. 421, 425, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647.

And the servant is liable although he did the act under an honest mistake. Commonwealth v. Mulrey, 170 Mass. 103, 49 N.E. 91; Commonwealth v. Stevens, 153 Mass. 421, 425, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647.

The question here is under what circumstances the master is liable when the act is done by the servant.

It is not enough that it was done in the course of the servant's employment in the master's business. Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647, s. c. 155 Mass. 291, 29 N.E. 508.

To convict a master for the act of the servant the government must show that the master participated in the act or countenanced it or otherwise approved of it. Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647, s. c. 155 Mass. 291, 29 N.E. 508; Commonwealth v. Joslin, 158 Mass. 482, 495, 33 N.E. 653, 21 L. R. A. 449.

It follows that the concession made 'that it was within the scope of Molloy's authority from the defendant to keep the express book' was not decisive of the defendant's liability. It also follows that the judge was wrong in excluding evidence as to 'what instructions, if any, he [the defendant] gave Molloy in relation to conducting the business,' and evidence to the effect that he, the defendant, 'told Molloy to run the business right and to be sure and keep the book straight.' Similar evidence was received at both trials of Commonwealth v. Stevens (see 153 Mass. 421, 26 N.E. 992, 11 L. R. A. 357, 25 Am. St. Rep. 647, and 155 Mass. 291, 29 N.E. 508), and under the doctrine of those cases cannot be excluded.

Exceptions sustained....