Com. v. Dale

• Decision Date: 05 May 1887
• Citation: 144 Mass. 363,11 N.E. 534
• Parties: COMMONWEALTH v. DALE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 363

11 N.E. 534

COMMONWEALTH v. DALE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 5, 1887

COUNSEL

W.I. Badger, for defendant.

OPINION

From the earliest time the framers of the statutes prohibiting opening shops and doing business on the Lord's day contemplated instances where it would be necessary to allow exceptions to the prohibition. The preamble to St.1760, c 20, § 9, recognizes the fact that some disturbance by the performance of the acts prohibited in the statute following was necessary; that is, that some shops must be open and some business done. And so, in the preamble to St.1791, c. 58, § 1, this necessity is contemplated and provided for. Pub.St c. 98, § 2, is substantially the same as that enacted in 1791, c. 58; and the preamble to the latter statute sets forth the reasons of its passage, and is applicable to the statute now in force. Com. v. Dextra, 143 Mass. 28 31, 8 N.E. 756. But see Com. v. Collins, 2 Cush. 556. The defendant did not carry on the ordinary business of the week. If it be true that a shop could be opened on the Lord's day for a necessity or for some charitable purpose, and if selling Sunday newspapers on the Lord's day be a necessity, then the act of the defendant was an exception to the prohibition, and he was not guilty of the offense alleged in the complaint. The defendant's request for the court to rule "that if the jury found that the defendant kept his shop open simply for the purpose of selling Sunday newspapers, and that selling Sunday newspapers on the Lord's day was a necessity, then they should return a verdict of not guilty," should have been given. Com. v. Pray, 13 Pick. 359; 2 Russ. Crimes, (7th Amer.Ed.) 786-788; 3 Starkie, Ev. 1532; U.S. v. Howard, 3 Sum. 12, 15, 16. If descriptive words be used in a complaint, though unnecessarily, they must be proved. Archb.Crim.Pr. & Pl. 282, note; U.S. v. Keen, 1 McLean, 441; U.S. v. Brown, 3 McLean, 233; State v. Noble, 15 Me. 476. It was open, then, to the defendant to show that selling Sunday newspapers on the Lord's day was a necessity, and it was a question of fact for the jury, under proper instructions, to find whether selling Sunday newspapers on the Lord's day was a necessity. Com. v. Harrison, 11 Gray, 308, 309; Doyle v. Lynn & B.R. Co., 118 Mass. 195; Gorman v. City of Lowell, 117 Mass. 65; Crosman v. City of Lynn, 121 Mass. 301; Smith v. Boston & M.R.R., 120 Mass. 491. The third ruling requested by the defendant should have been given. Com. v. Wade, 17 Pick. 395; State v. Noble, 15 Me. 476, and cases cited. The evidence shows that Mrs. Ellor, not Dale, was the owner of the shop, and that Dale was simply her agent. The variance is fatal.

E.J. Sherman, Atty. Gen., for the Commonwealth.

MORTON C.J.

The first two instructions requested by the defendant were properly refused. Upon the points raised by them, the case of Com. v. Dextra, 143 Mass. 28, 8 N.E. 726, is decisive. It appeared in evidence that the shop in question was a shop for the sale of periodicals; that the shop and the business thereof was owned by one Mrs. Ellor; and that the defendant was hired by Mrs. Ellor to take charge of the shop, and to manage the business thereof. The defendant asked the court to instruct the jury that, unless they "found that the defendant was the owner of the shop in question, they must return a verdict of not guilty." The court rightly instructed the jury that if the defendant had charge and control of said shop, and carried on the business thereof, he might be convicted.

In misdemeanors all who knowingly and intentionally participate in the offense are principals, and may be convicted...