207 Mass. 141 (1910), Commonwealth v. Mixer

Citation:207 Mass. 141, 93 N.E. 249
Opinion Judge:RUGG, J.
Party Name:COMMONWEALTH v. MIXER.
Attorney:[93 N.E. 249] Henry C. Attwill, Asst. Dist. Atty., for the Commonwealth. James W. Sullivan, for defendant.
Case Date:December 02, 1910
Court:Supreme Judicial Court of Massachusetts

Page 141

207 Mass. 141 (1910)

93 N.E. 249

COMMONWEALTH

v.

MIXER.

Supreme Judicial Court of Massachusetts, Essex.

December 2, 1910

COUNSEL

[93 N.E. 249] Henry

Page 148

C. Attwill, Asst. Dist. Atty., for the Commonwealth.

James W. Sullivan, for defendant.

OPINION

RUGG, J.

This complaint, under St. 1906, c. 421, charges the defendant with illegally transporting intoxicating liquor into the city of Lynn, where no licenses of the first five classes for the sale of intoxicating liquor and no permits to transport such liquor into the city had been granted. The defendant, a driver in the employ of a common carrier, had upon his load for transportation in Lynn a sugar barrel, not marked by the seller or consignor as required by Rev. Laws, c. 100, § 49, for packages containing intoxicating liquor. There was nothing about the appearance of the barrel to cause suspicion as to its contents, and the defendant was ignorant of the fact that it contained intoxicating liquor. The superior court refused to instruct the jury that unless the defendant knew that the barrel contained intoxicating liquor or from its appearance and all the circumstances ought reasonably to have been put on inquiry as to its contents, he should be acquitted. The question presented is whether this refusal was error. Narrowly stated the inquiry is whether a common carrier or his servant can be convicted of the crime of illegally transporting intoxicating liquor under the

Page 142

statute, when he does not know and has no reaosn to surmise that there is intoxicating liquor in a package delivered for transportation by a seller or consignor who has violated the law by failing to mark such package plainly and legibly with the kind and amount of liquor it contains.

In the prosecution of crimes under the common law apart from statute, it ordinarily is necessary to allege and prove a guilty intent, and as a general principle a crime is not committed if the mind of the person doing the act is innocent. An evil intention and an unlawful action must concur in order to constitute a crime. But there are many instances in recent times where the Legislature in the exercise of the police power has prohibited under penalty the performance of a specific act. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in these cases is whether the defendant did the act. In the interest of the public the burden is placed upon the actor of ascertaining at his peril whether his deed is within the prohibition of any criminal statute. There are [93 N.E. 250] many illustrations of such exercise of legislative power, as, for instance, the selling of milk below a designated standard ( Commonwealth v. Wheeler, 205 Mass. 384, 91 N.E. 415; Commonwealth v. Warren, 160 Mass. 533, 36 N.E. 308); the driving of an unregistered automobile ( Feeley v. Melrose, 205 Mass. 329, 334, 91 N.E. 306, 27 L. R. A. [N. S.] 1156); being present where gaming implements are found ( Commonwealth v. Smith, 166 Mass. 370, 44 N.E. 503); obstructing a highway more than five minutes even through unlawful interference by trespassers ( Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394, 88 N.E. 764, 23 L. R. A. [N. S.] 350, 132 Am. St. Rep. 507); bigamy and adultery by marriage with one honestly, upon reasonable ground, but mistakenly, supposed to be single ( Commonwealth v. Mash, 7 Metc. 474; Commonwealth v. Thompson, 11 Allen, 23, 87 Am. Dec. 685; Commonwealth v. Hayden, 163 Mass. 453, 457, 40 N.E. 846, 28 L. R. A. 318, 47 Am. St. Rep. 468); killing for sale an animal under a designated age ( Commonwealth v. Raymond, 97 Mass. 567); being present where implements for smoking opium are found ( Commonwealth v. Kane, 173 Mass. 477, 53 N.E. 919); admitting a minor to a billiard hall ( Commonwealth v. Emmons, 98 Mass. 6); selling adulterated milk ( Commonwealth v.

Page 143

Farren, 9 Allen, 489); storing and selling naptha ( Commonwealth v. Packard, 185 Mass. 64, 69 N.E. 1067; Commonwealth v. Wentworth, 118 Mass. 441); sale of imitation butter inadvertently not wrapped as directed by the employer and required by law ( Commonwealth v. Gray, 150 Mass. 327, 23 N.E. 47). See, also, Commonwealth v. Lavery, 188 Mass. 13, 73 N.E. 884; Commonwealth v. Murphy, 165 Mass. 42 N.E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496; Commonwealth v. Connelly, 163 Mass. 539, 40 N.E. 862; Commonwealth v. Shea, 150 Mass. 314, 23 N.E. 47; Commonwealth v. Julius, 143 Mass. 132, 8 N.E. 898; Commonwealth v. Dyer, 128 Mass. 70. This principle has been very frequently applied to statutes respecting intoxicating liquor. In Commonwealth v. Boynton, 2 Allen, 160, it was held that one could be convicted of selling intoxicating liquor even though he had no reason to suppose that it was intoxicating. To the same effect see Commonwealth v. Goodman, 97 Mass. 117; Commonwealth v. Hallett, 103 Mass. 452; Commonwealth v. Uhrig, 138 Mass. 492; Commonwealth v. Savery, 145 Mass. 212, 13 N.E. 611; Commonwealth v. Daly, 148 Mass. 428, 19 N.E. 209; Commonwealth v. O'Kean, 152 Mass. 584, 26 N.E. 97. The sale by a licensed liquor dealer to a minor, though made in good faith and without reason to suspect that the purchaser was below age ( Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992; Commonwealth v. Finnegan, 124 Mass. 324), or to one honestly but erroneously supposed to be a guest on the Lord's day ( Commonwealth v. Regan, 182 Mass. 22, 64 N.E. 407; Commonwealth v. Joslin, 158 Mass. 482, 497, 33 N.E. 653, 21 L. R. A. 449; Commonwealth v. Barnes, 138 Mass. 511), have all been held crimes under statutes of this nature. This rule prevails generally though not universally throughout the United States. See cases collected in Haynes v. State, 118 Tenn. 709, 105 S.W. 251, 13 L. R. A. (N. S.) 559, 121 Am. St. Rep. 1055, State v. Powell, 141 N.C. 780, 53 S.E. 515, 6 L. R. A. (N. S.) 477, and Harper v. State, 91 Ark. 422, 121 S.W. 737, 25 L. R. A. (N. S.) 669. It was assumed in Commonwealth v. Riley, 196 Mass. 60, 81 N.E. 881, 10 L. R. A. (N. S.) 1122, that the crime created by Rev. Laws, c. 100, § 50, of delivery by a regular expressman of intoxicating liquor without entering it in a book belonged to this class.

It becomes necessary to examine the terms and history of the statute upon which the present complaint is founded, and the antecedent enactments of the Legislature touching the general subject, to determine whether it falls in the same class. The local option license law now prevailing was first enacted by St. 1875, c. 99. It contained no provision respecting the transportation of liquors. By St. 1878, c. 207, the transportation of

Page 144

intoxicating liquors into municipalities where licenses were not granted, with intent to sell or having reasonable cause to believe that they were intended to be sold in violation of law, was forbidden, and whoever willfully violated any provision of the law was subject to punishment. In a respect immaterial to the present inquiry, this statute was amended by St. 1879, c. 282. By the consolidation of pre-existing enactments in Pub. St. 1882, c. 100, § 18, the word 'willfully' was omitted, and has not since appeared in any statute touching the transportation of intoxicating liquor.

St. 1897, c. 271, required plain and legible marking of the packages with the name of the consignee and the...

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72 practice notes
  • 303 Mass. 136 (1939), Beauvais v. Springfield Institute for Savings
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 5, 1939
    ...innocently and without knowledge that the use of this appliance had not been sanctioned by the fire marshal. Commonwealth v. Mixer, 207 Mass. 141 . Relief is denied not so much as a shield to a defendant whose violation of law has resulted in an injury to another, but because the court will......
  • 342 Mass. 393 (1961), Commonwealth v. Murphy
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • April 5, 1961
    ...offense' punishable notwithstanding innocent intent. Commonwealth v. Smith, 166 Mass. 370, 375-376, 44 N.E. 503. Commonwealth v. Mixer, 207 Mass. 141, 142-143, 93 N.E. 249, 31 L.R.A.,N.S., 467, and cases cited. Commonwealth v. Lee, 331 Mass. 166, 117 N.E.2d 830. See Morissette v. United Sta......
  • 75 So. 343 (Ala. 1917), 6 Div. 244, State v. Southern Express Co.
    • United States
    • Alabama Supreme Court of Alabama
    • April 19, 1917
    ...the carrier in refusing a labeled shipment of liquor that was not submitted to an appropriate inspection by the carrier. Com. v. Mixer, 207 Mass. 141, 93 N.E. 249, 31 L.R.A. (N.S.) 467, 20 Ann.Cas. 1152. These considerations are reinforced by the suggestion of manifest reason and justice th......
  • 153 N.W. 49 (Mich. 1915), 268, Mackin v. Detroit-Timkin Axle Co.
    • United States
    • Michigan Supreme Court of Michigan
    • June 14, 1915
    ...the doing of an act with the utmost moral innocence and in ignorance of any forbidding aspect of the act. Com. v. [187 Mich. 18] Mixer, 207 Mass. 141 [93 N.E. 249, 31 L. R. A. (N. S.) 467, 20 Ann. Cas. 1152].' No constitutional provision is pointed out which prohibits the Legislature, in fr......
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71 cases
  • 303 Mass. 136 (1939), Beauvais v. Springfield Institute for Savings
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 5, 1939
    ...innocently and without knowledge that the use of this appliance had not been sanctioned by the fire marshal. Commonwealth v. Mixer, 207 Mass. 141 . Relief is denied not so much as a shield to a defendant whose violation of law has resulted in an injury to another, but because the court will......
  • 342 Mass. 393 (1961), Commonwealth v. Murphy
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • April 5, 1961
    ...offense' punishable notwithstanding innocent intent. Commonwealth v. Smith, 166 Mass. 370, 375-376, 44 N.E. 503. Commonwealth v. Mixer, 207 Mass. 141, 142-143, 93 N.E. 249, 31 L.R.A.,N.S., 467, and cases cited. Commonwealth v. Lee, 331 Mass. 166, 117 N.E.2d 830. See Morissette v. United Sta......
  • 75 So. 343 (Ala. 1917), 6 Div. 244, State v. Southern Express Co.
    • United States
    • Alabama Supreme Court of Alabama
    • April 19, 1917
    ...the carrier in refusing a labeled shipment of liquor that was not submitted to an appropriate inspection by the carrier. Com. v. Mixer, 207 Mass. 141, 93 N.E. 249, 31 L.R.A. (N.S.) 467, 20 Ann.Cas. 1152. These considerations are reinforced by the suggestion of manifest reason and justice th......
  • 153 N.W. 49 (Mich. 1915), 268, Mackin v. Detroit-Timkin Axle Co.
    • United States
    • Michigan Supreme Court of Michigan
    • June 14, 1915
    ...the doing of an act with the utmost moral innocence and in ignorance of any forbidding aspect of the act. Com. v. [187 Mich. 18] Mixer, 207 Mass. 141 [93 N.E. 249, 31 L. R. A. (N. S.) 467, 20 Ann. Cas. 1152].' No constitutional provision is pointed out which prohibits the Legislature, in fr......
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1 books & journal articles
  • "Left behind" after Sarbanes-Oxley.
    • United States
    • American Criminal Law Review Vol. 44 Nbr. 4, September 2007
    • September 22, 2007
    ...Liable For The Acts of Dishonest Cashiers, N.Y. TIMES Feb. 6, 1888, at 1. (56.) Id. (57.) Id. (58.) See, e.g., Commonwealth v. Mixer, 93 N.E. 249 (Mass. 1910) (holding that a driver carrying illegal liquor did not have to know that he was carrying illegal liquor to be in violation of a stat......