Commonwealth v. Prince

• Decision Date: 15 February 1943
• Citation: 313 Mass. 223,46 N.E.2d 755
• Parties: COMMONWEALTH v. PRINCE (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 223

46 N.E.2d 755

COMMONWEALTH

v.PRINCE (three cases).

Supreme Judicial Court of Massachusetts, Plymouth.

Feb. 15, 1943.

Exceptions from Superior Court, Plymouth County; Hayes, Judge.

Sarah Prince was convicted of refusing to give school attendance officer of city certain information required for proper enforcement of law relating to employment of children, of furnishing girl under 18 with magazines knowing that the girl was to sell them unlawfully, and of permitting the girl to work contrary to law, and defendant brings exceptions.

Exceptions sustained in regard to refusing information to the attendance officer, and exceptions overruled in other cases.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

E. R. Dewing, Dist. Atty., and R. G. Clark, Jr., Deputy Dist. Atty., both of Brockton, for the Commonwealth.

A. A. Albert, of Boston, for defendant.

QUA, Justice.

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¢ 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.’

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 people of the one place of safety, that is in the kingdom of God under Christ that we have prayed for.’

There was also evidence from which it could have been found that on the evening in question the defendant when asked by the supervisor of attendance to give him Betty's name refused to do so, although she knew he was such officer and that he desired the name to aid in the enforcement of the law. There was evidence that the supervisor insisted that he did not already know Betty's name; that during the interview he said that he had a right to arrest the defendant; and there was evidence that on a previous occasion he had explained to her that it was against the law to allow children on the street selling magazines.

General Laws (Ter.Ed.) c. 149, § 69, as amended by St.1939, c. 461, § 7, provides in part that ‘No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bookblack or scavenger, or any other trade, in any street or public place.’ Section 77 provides that sections 69 to 73 shall be enforced by supervisors of attendance and police officers and vests the former with ‘full police powers for the purpose.’ Section 79 provides in part that any person ‘who refuses to give’ to a supervisor of attendance ‘such information as may be required for the proper enforcement of sections sixty to seventy-four, inclusive, shall be punished * * *.’ Section 80 provides that ‘Whoever furnishes * * * to any minor any article of any description with the knowledge that the minor intends to sell such article in violation of any provision of sections sixty-nine to seventy-three, inclusive * * * shall be punished * * *.’ Section 81 provides that ‘Any * * * custodian having a minor under his control who * * * permits such minor to work in violation of any provision of sections sixty to seventy-four, inclusive * * * shall * * * be punished * * *.’

One Perkins, supervisor of attendance of the schools of Brockton, made these three complaints against the defendant charging respectively that on December 18, 1941, at Brockton the defendant (first complaint, for violation of section 79) ‘did refuse to give to George S. Perkins, attendance officer of said Brockton, certain information, to wit: the name and age of Betty M. Simmons, a minor under the age of eighteen years, such information being required for the proper enforcement of the law’; (second complaint, for violation of section 80) ‘did furnish to one Betty M. Simmons, a girl under the age of eighteen years, certain articles, to wit: magazines, she, the said Sarah Prince well knowing that the said Betty M. Simmons was to sell the said magazines unlawfully’; and (third complaint, for violation of section 81) ‘was the custodian of Betty M. Simmons, a minor, and did permit the said Betty M. Simmons to work contrary to law.’ Upon appeal to the Superior Court the complaints were tried by a judge without a jury, who found the defendant guilty on all three complaints.

The questions presented in various forms by the defendant's exceptions and argued before us are whether there was any evidence to warrant the findings that the defendant had violated the statutes as charged, and whether on their face, or as applied in these cases to the facts that could warrantably be found, the statutes underlying the three complaints are unconstitutional.

The defendant's contention that the statutes involved do not apply to her activities and those of Betty rests in general upon the argument that these statutes were aimed at the regulation of street trades of well known types commonly carried on by children for money, and that they were not intended to regulate the distribution without profit of religious publications by those who regard the spreading of their beliefs in this way as a command of God and hence as a religious and moral duty. We are not convinced that this contention is sound. By way of caution we must remember that the trial judge might not have accepted as wholly true the testimony of the defendant and her witnesses as to their religious beliefs or as to the philanthropic character of their undertaking. But if he accepted it in full, we still think a finding was warranted that the law had been violated. It is no doubt true in a broad sense that the statutes were directed at the regulation of certain ordinary street trades. But this will not justify us in excluding from their operation acts that come within their literal terms and that may involve the very evils intended to be curbed. To do this would be to rewrite the statutes and to insert in them exceptions which the Legislature could have inserted if it had desired that such exceptions should exist. The acts of the defendant could well be found to fall within the literal terms of the statutes and within the allegations of the complaints. Section 69, as amended, contains no exception as to religious magazines. Its words are ‘any newspapers, magazines, periodicals or any other articles of merchandise of any description.’ The judge could find that if a passerby should hand over five cents in accordance with the sign on the bag and should receive a magazine in return, a sale would be effected. The judge was not required to accept the defendant's characterization of that transaction as a ‘contribution.’ He could believe that selling the literature played a more prominent part in the enterprise than giving it away. He could find that the defendant furnished the magazines to Betty, knowing that the latter intended to sell them, if she could, in violation of section 69. There is nothing in that section that restricts its scope to selling with an ultimate net profit in view. There is nothing in any of the sections on which these complaints rest that requires an employment of the minor, in the sense in which the word employment is used in the law of master and servant, as a condition of criminal responsibility. The judge could find that the defendant permitted Betty to ‘work’ in violation of section 81. The ‘work’ mentioned in section 81, in so far as that section refers to section 69, is the selling, exposing or offering for sale prohibited by section 69, whether or not that is carried on under a technical employment or for a wage. And, finally, we cannot say that the evils at which the statutes were directed attendant upon the selling by children of newspapers, magazines, periodicals, and other merchandise in streets and public places do not exist where the publications are of a religious nature. It seems apparent that they may or may not exist in particular instances according to the circumstances just as they may or may not exist in particular instances according to the circumstances where the selling is of publications of a secular nature. The defendant has called to our attention a number of decisions holding that variously worded statutes relating to peddlers and other vendors were not intended to apply to the activities of ‘Jehovah's Witnesses.’ Perhaps of these cases the one nearest to the present case is State v. Richardson, N.H.1942, 27 A.2d 94. But we cannot regard any of them as decisive of the true construction of our own statutes.

We are of opinion that these statutes as here construed do not infringe upon the constitutional guaranties of freedom of the press and of religion. Under our constitutional system freedom of the press...