145 Mass. 398 | Mass. | 1888
The fact that Michael O’Marra, the alleged purchaser, was a minor, must be disregarded, it not having been averred. When the government wishes to avail itself of the special statutory provisions respecting a sale or delivery of
The case as proved, then, was a sale by an unlicensed person under a contract made with Michael. If Michael was the agent of an undisclosed principal, the complaint properly charged the sale as having been made to him; but if he was the agent of a disclosed principal, the complaint should have charged the sale as having been made to the principal. See Commonwealth v. O'Leary, 143 Mass. 95, and cases cited. The defendant now contends that the instruction to the jury was too limited, and that it authorized a conviction, unless Michael himself disclosed his principal at the time of the alleged sale, without adverting to the consideration that his agency for his father might have been well understood from a previous course of dealing, or otherwise. This distinction, however, was not taken at the trial, but the court was asked to rule that there was no evidence of a sale to Michael, or at any rate no sufficient evidence of a sale and delivery to him. The instruction actually given may properly be considered with reference to the requests made; and, if regarded in this manner, may fairly be understood to mean that, if Michael’s father was not in any manner disclosed or known at the time as the principal in the transaction, then the charge of a sale to Michael was supported by the evidence. If the defendant had wished to take the distinction upon which he now relies, he should have called attention to it at the trial. The language used by the court was quite similar to that used in Commonwealth v. Gormley, 133 Mass. 580.
The evidence was sufficient to warrant a verdict of guilty, provided Michael was acting for an undisclosed principal.
Exceptions overruled.
