Commonwealth v. Gormley

133 Mass. 580 | Mass. | 1882

Field, J.

The first exception was not argued, and the instruction that the “ defendant may be convicted of a sale to Thomas F. Casey, if he was the person named in the complaint, as the person to whom the defendant made an unlawful sale, notwithstanding he is styled in the complaint Thomas Casey, provided that person was as well known and called by the name of Thomas Casey as by the name of Thomas F. Casey,” was correct. Commonwealth v. O'Hearn, 132 Mass. 553. Commonwealth v. Desmarteau, 16 Gray, 1, 17. Commonwealth v. Shearman, 11 Cush. 546.

The exceptions do not purport to set out the whole evidence,, and we cannot say that the court should have given the second ruling asked for. Gunnison v. Langley, 3 Allen, 337. The instruction given, that the defendant may be convicted “ if, in making the purchase, Casey, although acting therein as the agent of Mary Daley, did not disclose the fact that he was buying the liquor for Mary Daley, or for some other person,” was correct. Commonwealth v. Kimball, 7 Met. 308. Commonwealth v. Remby, 2 Gray, 508. Commonwealth v. McGuire, 11 Gray, 460.

If it was the intention of the defendant to raise the question whether the defendant could be found guilty if the jury should find that Casey did state to her, at zthe time of the sale, that he was buying the whiskey for his mother, and also find that in fact he was not buying the whiskey for himself but for Mary Daley, another person, we are of the opinion that the exceptions do not show that this question was distinctly presented to the presiding justice of the Superior Court, or was passed upon by him.

The instructions given upon the presumed, coercion by the husband were sufficiently favorable to the defendant; and the fourth ruling requested was rightly refused. Whether there is any crime, which, if committed by a wife in the actual presence of her husband, is conclusively presumed, in favor of the wife, to have been committed by his coercion, need not be discussed. The evidence was that the husband was in an adjoining room, “ sick upon a bed, and that the door between the shop and room was open.” Under such circumstances, there is no conclusive presumption of law that she, in selling intoxicating liquor, was acting under the immediate influence and control of her husband. 1 Russ, on Crimes, 41. Exceptions overruled.