Com. v. Reid
| Decision Date | 01 March 1900 |
| Citation | 175 Mass. 325,56 N.E. 617 |
| Parties | COMMONWEALTH v. REID (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. J. Sughrue, for the Commonwealth.
C. P Sampson, for defendant.
In the first of these cases the defendant is complained of for a violation of Pub. St. c. 68, § 16, in selling ice in a street in Boston without a license from the secretary of the commonwealth. The motion to quash was rightly overruled, as it is too late to object in the superior court that a complaint originally filed in an inferior court is insufficient in form. Pub. St. c. 214,§ 25; Com. v Doherty, 116 Mass. 13; Com. v. Donahoe, 130 Mass. 280. The complaint in the case at bar follows the language of Pub. St. c. 68, § 16, and describes, certainly with substantial if not with formal accuracy, a violation of that act. It does not, in form or in substance, describe a violation of St. 1890, c. 448, forbidding an itinerant vender, who is therein defined to be a person engaged in a temporary business, and who, for the purpose of carrying on such business, hires, leases, or occupies a building for the exhibition and sale of his goods, from selling without a license. The effect and purpose of that act have been described in Com. v. Crowell, 156 Mass. 215, 30 N.E. 1015; Com. v. Newhall, 164 Mass. 338, 41 N.E. 647.
The first instruction requested was rightly refused. The complint did allege an offense. We are of opinion that ice is not included in the term 'provisions,' within Pub. St. c. 68, § 1, providing that any person may go from place to place in the same town exposing for sale and selling, among other things, provisions. The word 'provisions' means food, victuals, fare, provender. Ice is neither food, victuals, fare, nor provender. This case is not affected by St. 1899, c. 260, subsequently enacted, providing that Pub. St. c. 68, § 1, shall apply to ice as well as to provisions.
There was evidence proving the offense complained of. Driving a load of ice through the streets, calling out, 'Ice ice,' and twice selling ice to a person standing in the street, who then and there paid for the same, is sufficient evidence that the defendant was going from place to place, carrying and exposing merchandise for sale. The fact that the defendant did this as an employé of a solvent corporation, which not only sent out a cart to peddle ice, as the evidence in the case at bar tended to show, but also delivered ice to persons who had previously ordered the same, and the further fact that the occupants of the house to which the complainant had directed the ice bought by him on the street to be delivered were among the customers given in the list handed by the company to the defendant, do not make the actions of this defendant here complained of any the less a violation of Pub. St. c. 68, § 16. If the defendant wished to raise the question whether the general scope of the defendant's business was delivering ice to those who had previously bought it, and that the sales testified to were exceptional, and not in the course of his ordinary business, within Com. v. Farnum, 114 Mass. 271, he should have asked to have that fact left to the jury under appropriate instructions. In view of the fact that the defendant was driving along, calling out, 'Ice, ice,' the two sales made by him on the street were evidence on which the jury were warranted in finding that selling ice from a wagon driven by him was within the general scope of his business. There was no evidence that the defendant was at the time delivering any ice to persons who had previously ordered the same. The only evidence of sales or deliveries to persons other than the complainant is found in the statement in the bill of exceptions that the complainant 'heard Reid shout, 'Ice, ice,' several times, and saw the defendant deliver ice...
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