140 Mass. 454 | Mass. | 1886
The complaint alleged the keeping of a common nuisance, namely, a tenement used for the illegal sale and illegal keeping of intoxicating liquors. The evidence was of three sales, two in the presence of the defendant’s husband, and a third when he was in the yard outside the kitchen where the sale was made. As to this last sale, the jury were instructed that “ no presumption arises that sales made by the wife, when the husband is on the estate, or on the premises, not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made.” We think that the jury must have understood this language as meaning that, if, at the moment of the sale, the husband was not immediately and visibly in presence of the wife, she would be liable for it, as matter of law, although he was on the premises. We also think, although perhaps this is less important, that the word “ liable ” must be taken to mean liable on this complaint, which was the point on which the jury were to be instructed, as otherwise there would seem to have been a mistrial.
Thus construed, the instructions went too far, and justice to the defendant requires that she should have a new trial, even if the actual meaning of the judge was correct. It is true that, if the wife acts in the absence of her husband, there is no presumption that she acts under his coercion. But if the husband is near enough for the wife to act under his immediate influence and control, though not in the same room, he is not absent, within the meaning of the law. Commonwealth v. Buck, 11
Exceptions sustained.