313 Mass. 223 (1943), Commonwealth v. Prince

Citation:313 Mass. 223, 46 N.E.2d 755
Party Name:COMMONWEALTH v. SARAH PRINCE (and two companion cases against the same defendant).
Case Date:February 15, 1943
Court:Supreme Judicial Court of Massachusetts
 
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313 Mass. 223 (1943)

46 N.E.2d 755

COMMONWEALTH

v.

SARAH PRINCE (and two companion cases against the same defendant).

Supreme Judicial Court of Massachusetts, Plymouth.

February 15, 1943

November 2, 1942.

Present: FIELD, C.

J., DONAHUE, QUA, COX, & RONAN, JJ.

Minor. Constitutional Law, Freedom of the press, Religion, Police power, Public place, Self incrimination.

Way, Public: distribution of literature, "street trade.

" Sale, By minor. A finding of guilt under the first sentence of G. L. (Ter. Ed.) c. 149,

Section 69, as amended by St. 1939, c. 461, Section 7, would be warranted by evidence that a girl nine years of age carried on a public street a "magazine bag" marked "5 cents a copy" and containing religious magazines which she offered for "contributions" of five cents or more each, notwithstanding further evidence that she was not selling the magazines, that one could obtain a copy without paying five cents, and that the distribution of the magazines was a religious and charitable enterprise not carried on for profit; and such evidence also warranted a finding of guilt under Sections 80, 81, of a custodian of the girl who gave her the bag and the magazines and told her "where to stand."

A technical employment of a minor for a wage is not an element of the offences defined by G. L. (Ter. Ed.) c. 149, Sections 80, 81, respectively, of furnishing an article to the minor with knowledge of his intent to sell it in violation of Section 69, as amended, and, on the part of a custodian in control of the minor, of permitting him to work in violation of said Section 69.

As applied to a sale of religious magazines, the provisions, enacted under the police power, of G. L. (Ter. Ed.) c. 149, Section 69, as amended, forbidding the sale by certain minors of magazines and other merchandise in streets and other public places, and of Sections 80, 81, establishing respectively the offence of furnishing such merchandise to a minor with knowledge of his intent to sell it in violation of Section 69, as amended, and the offence, on the part of a custodian in control of a minor, of permitting him to work in violation of said Section 69, do not violate the constitutional guaranties of freedom of the press and freedom of religion.

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The provision of art. 12 of the Declaration of Rights against self incrimination would be violated by punishment of a defendant under G. L.

(Ter. Ed.) c. 149, Section 79, for his refusal to give a supervisor of attendance the name of a minor in the defendant's custody who was selling merchandise in violation of Section 69, as amended, where testimony by the minor when found would furnish complete proof of the defendant's guilt of violations of Sections 80, 81, for which he was prosecuted contemporaneously with the prosecution under Section 79.

THREE COMPLAINTS, received and sworn to in the District Court of Brockton on January 2, 1942.

Upon appeal to the Superior Court, the cases were heard without a jury by Hayes, J., a District Court judge sitting under statutory provisions. The defendant was found guilty on each complaint, and alleged exceptions.

A. A. Albert, for the defendant.

E. R. Dewing, District Attorney, & R.

G. Clark, Jr., Assistant District Attorney, for the Commonwealth, submitted a brief.

QUA, J. There was evidence tending to show the following: On the evening of the day named in each of these three complaints the defendant was on a public street in Brockton with her niece, one Betty M. Simmons, a girl in her ninth year, of whom the defendant was the custodian. Both the defendant and the child belonged to a religious sect known as "Jehovah's Witnesses" and as such regarded themselves as "ordained ministers" of God. Betty carried a "magazine bag" on which was printed "Watchtower explains the Theocratic Government" "5 cents a copy." In the bag were copies of the religious publications "Watchtower" and "Consolation." Betty held up a copy of each in her hand. She testified that she was "taking contributions" of five cents for each magazine, or more "if people should give more"; that she was not selling them; that on that night she did not receive any contributions or give any magazines away; that when she had received "contributions" she gave all the money to the defendant; and that the defendant had given her the bag and the magazines. The defendant admitted at the trial that she had given Betty the bag and the magazines and testified that she told Betty "where to stand."

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There was further testimony by the defendant and witnesses called by her to the effect that a person interested could obtain a copy of a magazine without paying the five cents; that the enterprise of distributing the magazines was not carried on for profit but was a religious and charitable enterprise; and that she and her children were on the street corner for no other reason "but to tell the...

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