Com. v. Starr

• Decision Date: 05 May 1887
• Citation: 11 N.E. 533,144 Mass. 359
• Parties: COMMONWEALTH v. STARR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 359

11 N.E. 533

COMMONWEALTH v. STARR.

Supreme Judicial Court of Massachusetts, Suffolk.

May 5, 1887

COUNSEL

F.S. Hesseltine, for defendant.

OPINION

If the defendant could show that his shop was open from necessity it was a good defense. Necessity releases one from obligations and penalties of law, even the Sabbath law. Necessity may take life. Necessity may take the property of another; may commit a trespass. The law recognizes a way of necessity. It recognizes the defense of necessity in violation of law. Necessity has no law. Indeed, necessity is itself a law which cannot be avoided. If it was necessary to open his shop to save property, health, or life, it was justifiable by a law higher and more sacred than the statute. Bac.Max.Reg. 5; Mark, II., 25. It does not require a statute provision to legalize a deed of charity on the Sabbath day whether in the street or store. The defendant should have been allowed to show that he conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business and labor on that day.

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

MORTON C.J.

The evidence shows that the defendant, who is a Hebrew, kept open his shop on the Lord's day, for the purpose of selling meat to the Hebrews. The court correctly held that the facts that he was a Hebrew who conscientiously believed that the seventh day of the week ought to be observed as the Sabbath, and that he actually refrained from secular business on that day, were immaterial. This point was fully considered and decided in Com. v. Has, 122 Mass. 40.

The court also correctly held that it was not competent for the defendant to prove that he kept open his shop for the sole purpose of selling meat to Hebrews, and that this was a work of necessity or charity. The statute prohibits keeping open a shop for any purposes of business, and the exception of "works of necessity and charity" do not apply. This was decided in Com. v. Dextra, 143 Mass. 28, 8 N.E. 756, which is conclusive of the case at bar. Exceptions overruled.

NOTE.

SUNDAY--KEEPING OPEN SHOP. The carrying on of one's ordinary business on Sunday is an indictable offense at the common law, and also under the statutes of Tennessee, if conducted so openly as to attract public observation, and thereby tend to the corruption of public morals. It is no defense against such a...