Commonwealth v. Stevenson
| Decision Date | 21 October 1886 |
| Citation | 8 N.E. 341,142 Mass. 466 |
| Parties | COMMONWEALTH v. STEVENSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John R. Thayer, for defendant.
The statement of Robbins, the minor, as to his age, was secondary evidence. There was better evidence of his exact age, as it appeared that he was born in Boston, in this state. The record of his birth should have been produced. The evidence given was not sufficient to prove the fact, and the court should have so ruled. The precise day of Robbins' birth was the material issue in the case. Whether a witness can testify as to the precise day of his birth has never been decided in this state. Hill v. Eldridge, 126 Mass 234. The evidence of Robbins as to his age was hearsay evidence, and should have been excluded. Com. v Emmons, 98 Mass. 6.
The instruction that "if the defendant's bar-tender, in the saloon of the defendant, in the usual and ordinary course of business," etc., was misleading, and did not fairly state the law. All the cases wherein the ruling has been made that a sale by an agent in the master's saloon is prima facie a sale by the master have been cases where the defendant was charged with selling without a license, where any sale, either by the master or servant would have been illegal. The reasoning of these cases does not apply to the case at bar. The defendant or his agent was authorized to make sales of liquor in most cases. To only a few excepted classes would a sale be illegal. Therefore there is not equal ground for inferring, in case at bar, that a sale to a minor was prima facie authorized by the defendant, as for inferring it when any sale by the agent would be illegal. The fact that a person kept liquors in charge of a servant naturally warrants the inference that the master authorized sales by the servant. But the fact that a master places liquor in the charge of a servant, and authorizes him to make legal sales to proper persons, does not warrant an inference that he authorizes him to make illegal sales, or sales to improper persons.
E.J. Sherman, Atty. Gen., for the Commonwealth.
The rulings and refusals to rule of the court were correct. The court properly admitted the evidence of the witness Robbins as to his own age, (Hill v. Eldridge, 126 Mass. 234;) also the evidence as to "what he got" in defendant's place. It was the best evidence. Com. v. Fisher, 138 Mass. 504; Com. v. Barnes, Id. 511; Com. v. Nash, 135 Mass. 541; Com. v. Dowdican, 114 Mass. 257. The court properly refused to rule, as a matter of law, that there was not sufficient evidence to warrant the jury in finding the defendant guilty. That was a question for the jury. Com. v. Coolidge, 138 Mass. 193. The rulings of the court as to the liability of the defendant for any acts of his agent were correct. Com. v. Uhrig, 138 Mass. 492; Com. v. Kelley, 140 Mass. 441; S.C. 5 N.E. 834; Com. v. Holmes, 119 Mass. 197.
OPINION
The instructions to the jury stated that a sale to a minor by a bar-tender, in the course of his master's lawful business, raised a presumption of fact against the master, in stronger terms than in Com....
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