Commonwealth v. Stevens
| Decision Date | 04 March 1891 |
| Citation | 153 Mass. 421,26 N.E. 992 |
| Parties | COMMONWEALTH v. STEVENS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Middlesex county; R.C. PITMAN, Judge.
HEADNOTES
Intoxicating Liquors 168
223 ----
223VI Offenses
223k166 Persons Liable
223k168 Principal's Liability for Acts of Agent or Servant.
A master is not responsible for an illegal sale of intoxicating liquor to a minor by his clerk under an honest mistake as to the buyer's age, if he directed him not to make such sales, though he may have authorized him to determine the age of customers from their appearance only.
223 ----
223VIII Criminal Prosecutions
223k225 Admissibility of Evidence
223k226 In General.
At the trial of a complaint against a druggist for the unlawful sale of intoxicating liquors to a minor, evidence is competent, on the question of the reasonableness of his precautions to prevent such sales, of the number of sales thereof charged on the defendant's books near the time of the alleged sale.
A.E Pillsbury, for the Commonwealth.
F.W Qua and W.F. Courtney, for defendant.
The defendant was a druggist, and was authorized by his license to sell intoxicating liquors for certain purposes, but not to minors. One of his clerks made a sale to a minor, and the principal question at the trial was whether the defendant was criminally responsible therefor. There was evidence that he had instructed all of his clerks not to make sales to minors nor indeed to any person under 25 years of age. The learned judge before whom the case was tried instructed the jury that, if they were satisfied that these instructions were given by the defendant, but that the clerks were to determine the question of minority simply from the appearance of the customer, and that the defendant authorized and permitted them to sell without further inquiry, if they believed such person to be 25 years of age or upwards, and that the clerk who made the sale in this case applied this test, and in good faith sold to this customer, then the defendant would be liable, even if he had no personal knowledge of this sale because the servant in such case was carrying on the defendant's business in the way he directed, and obeying his instructions, and that under such circumstances the act of the servant would be the act of the master. The correctness of this instruction is the principal question before us. The question in this precise form has not before arisen, so far as we know. In several cases there has been a consideration of the inferences of agency, in making a particular sale, which may be drawn from a general employment to sell liquors in the defendant's place of business, and the effect of such employment in overcoming evidence tending to show that the defendant instructed his servant not to sell to minors, or in leading to the conclusion that such instruction, if given, was not given in good faith. But in these cases the question is not discussed whether the master would be criminally responsible for a sale made by a clerk to a minor by mistake, under the supposition that the minor was an adult, both master and servant intending in good faith that no sale should be made to a minor. Com. v. Rooks, 150 Mass. 59, 22 N.E. 436; Com. v. Houle, 147 Mass. 380, 17 N.E. 896; Com. v. Hayes, 145 Mass. 289, 14 N.E. 151. In the case now before us it was ruled that criminal responsibility on the part of the master exists in a case where the clerks were expected to determine the question of minority simply from the appearance of the customer; but we cannot see that this particular method of determining the question of minority has any legal significance, except as bearing upon the good faith of the master or of the servant. If the clerks had been instructed not to be satisfied with the personal appearance of the customer, but in all cases to put a direct inquiry as to his age, or even to require further evidence, mistakes might nevertheless be made, although in such cases the clerks would still be carrying on the master's business in the way prescribed by the master. If the clerks are permitted to be satisfied with a slight test, this, indeed, would be a proper subject for consideration in determining whether the instructions not to sell to minors were given and acted upon in good faith. But in the present case the instructions to the jury allowed them to convict the defendant, even though the jury should find that he had in good faith given instructions not to sell to minors, and though the clerk had in good faith endeavored and intended to follow those instructions, but had innocently made a mistake in judging of the purchaser's age from her appearance. The question was not submitted to the jury to determine as a matter of fact whether the permitted mode of determining the age was a reasonable one or not, or whether it indicated bad faith or negligence on the part of the defendant in the mode of conducting his business. That might have been proper for their consideration, but it cannot be affirmed as a matter of law that the test was unreasonable, or that it indicated bad faith or negligence. The court cannot lay it down as a rule for the guidance of the jury that the master ought to require further evidence. In many cases, perhaps in most, a mere inspection of the purchaser might be sufficient Com. v. Emmons, 98 Mass. 6. While a broader rule prevails in respect to a master's civil responsibility for ...
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