| Mass. | Feb 24, 1880
There was no error in the instructions of the court. The fact that the sale was made in Massachusetts is established by the verdict of the jury, under proper instructions, and on sufficient evidence. A distinction, however, is attempted to be made between a civil and a criminal act of sale. It is difficult to understand upon what basis; for it is the otherwise innocent and lawful act of sale which the statute makes criminal. It is the transaction itself which is criminal. But being made criminal simply because it is malum prohibitum, it can be but a misdemeanor; and every one who participates in the sale is a principal offender. Such participation must be in the sale itself. If a person is merely a messenger, by whom the article is transmitted from seller to buyer, and has no part in the act of sale, he is not responsible. In this case, the defendant was the person who actually received the order for the article sold, received payment for it, determined to make the sale, and gave the orders for the delivery, and so directly participated in the illegal act. Whether he was the owner of the property, or whether he was an agent, or salesman, or clerk of the owner, is wholly immaterial, as has been many times decided in this Commonwealth. Commonwealth v. Hadley, 11 Met. 66. Commonwealth v. Drew, 3 Cush. 279. Nor is this principle confined to misdemeanors committed within this state by a person without it, through an innocent agency. Adams v. People, 1 Comst. 173. 1 Whart. Crim. Law (7th ed.) §§ 278, 604. Exceptions overruled.