158 Mass. 482 | Mass. | 1893
Lead Opinion
The defendant was found guilty upon certain counts of the indictment, and seasonably filed a bill of exceptions, which was disallowed by the justice of the Superior Court in a certificate stating in detail the amendments which he considered necessary to make the bill conformable to the truth. The defendant then filed in this court a petition to establish the truth of the allegations in his bill of exceptions, and a commissioner was appointed whose report in favor of establishing the same came before the full court at the sitting in Bristol County in October, 1892. At the hearing before the commissioner the defendant’s counsel assented to the corrections and additions suggested in the certificate disallowing the bill of exceptions; but the commissioner failed to incorporate them in the bill established by him, owing to a doubt whether it was competent and proper for him to add them to the bill. At the hearing before the full court, the right and duty of the commissioner to consider the certificate was argued, and the defendant’s counsel consented that the corrections' and alterations should be incorporated in the bill of exceptions to be established, rather than have the matter recommitted to the commissioner. The court took the matter under advisement, and, being of the opinion that it was the duty of the commissioner to consider the statements of the certificates disallowing the bill, ordered that the bill of exceptions, with the corrections and amendments agreed upon, be established, and that they stand for argument at the November sitting of the court for the Commonwealth in Boston. ¡So ordered.
The bill of exceptions as thus established, and afterwards argued on the merits, was in substance as follows.
The indictment contained seven counts. The first count charged that the defendant, on May 1, 1891, and from that day to November 1, 1891, “ unlawfully did expose and keep for sale intoxicating liquors with intent unlawfully to sell the same,” not “ having then and there any license, authority, or appointment according to law therefor.” Two counts charged
The district attorney then called John Carroll, who admitted that the record of sales to him given in evidence by Freeman was substantially correct. He was then asked for what medicinal purposes he purchased the liquor. To this question the defendant objected, and it was admitted subject to exception. The witness answered, “ I got it for chronic diarrhoea,” and further testified that he was his own physician. Subject to like objection, Edwin L. Robinson testified that he did not pretend that he bought the liquor for medicinal purposes, though in
All the above mentioned purchasers admitted that the record testified to by Freeman was substantially correct. It also appeared, or was admitted by the Commonwealth, that the purchasers in each instance duly signed the certificate required by statute, filled out in due form.
The witness Freeman further testified, subject to the'defendant’s objection and exception, that in several instances the certificates had been torn out of the book and pasted in again; and that on these certificates the names of seven different persons appeared. The names of these persons, and the dates and amounts of their purchases, were stated by the witness. He also testified that they all lived in Plainville, a village about two miles from the defendant’s store, and that the defendant had said that he knew about the certificates which they had signed, and that he considered that he had a right to have them torn from the book and signed away from the store.
Edward C. Barney testified that he was twenty years of age; that he lived in North Attleborough, and was the local agent of Earl and Brew’s Express, who do a general express business in Boston, Providence, and elsewhere ; and that he was their local
Henry Bishop testified that he would be seventeen years old in February, 1892; that he had purchased liquor at the defendant’s store several times, and that he got it of the defendant personally a very few times, but could not tell how many. . On cross-examination he said that he had not purchased it more than three or four times; that he got it of Hill or one of the other clerks, and once of the defendant; and that he told Hill he was twenty-one years of age. It was not contended by the defendant that Bishop was not a minor.
For the defendant, Hallock H. Hill testified that he had been employed as a clerk and general salesman by the defendant for several years prior to the trial; that the defendant had instructed him and the other clerks never to sell intoxicating liquors to minors, or to other persons to whom the statute prohibited sales to be made; and that he never knowingly did sell to a minor. He admitted that he had sold liquor to Henry Bishop. He was then asked, “ What did Henry Bishop tell you as to his age, — whether he was an adult or a minor ? ” The question was objected to and excluded; and the defendant excepted. .
Charles S. Joslin, the defendant, testified that he had, in good faith, instructed his clerks never to sell to minors, or other persons to whom sales were prohibited by statute, and that he never intended to sell to such persons.
The defendant requested the judge to instruct the jury as follows:
“ 1. The defendant had the lawful right, if he held a license of the sixth class as a druggist, to sell intoxicating liquors for medical, chemical, and mechanical purposes to all persons ex*489 cept such as the statutes prohibit him from making such sale to, provided the purchaser, an adult, signed the certificate prescribed by the statute, and it was filled out in due and legal form. 2. If such sales be frequent to any one person to whom sales could lawfully be made, who duly signed the certificate filled out as required by the statute on each occasion of his purchase, the defendant could not be held to be criminally liable for any one of the sales, any more than he would be if such sales were only occasional, with long intervals of time between the sales. If the government contends that any such sale to such frequent purchaser was illegal or a criminal act, the burden of proof is on it to show by proper and legitimate evidence which one or more was illegal or was a criminal act. Failing in this, it cannot, under the evidence, claim that the sales proved to have been made to adults were unlawful or criminal. 3. Independent of statute, selling intoxicating liquor is a lawful business. The statute nowhere limits or defines the number or frequency of the sales which such licensed druggist may lawfully make to any one adult person who at the time of each purchase signs the certificate, if it is filled out as prescribed by statute. 4. A sale to be illegal must be such as would support a count in the indictment charging an unlawful sale or criminal sale to such adult person. If no one sale to an adult is shown to be illegal, evidence of such frequent sales would not be evidence to support the first 'count in the indictment. Immoral or unwise acts do not necessarily become criminal acts until the law defines them as such. 5. Upon the evidence, the delivery of intoxicating liquors to Barney upon the signed certificates of the purchasers for whom he acted as agent of disclosed principals, who signed the certificates filled out as prescribed by statute, were not criminal sales to Barney by reason of Barney being a minor. 6. There is a distinction between deliveries upon signed certificates or prescriptions of a physician to minors, and ordinary delivery to minors under license to sell under the fourth class. 7. If the delivery of liquors to Edward C. Barney was made by the defendant’s servants without his knowledge or consent, and against his instructions as to sales to minors, or if the jury have a reasonable doubt upon the question of such delivery by the defendant, or his*490 knowledge thereof, he is entitled to an acquittal on the counis charging sales to said Barney. 8. Under his license the defendant had a right to keep and expose intoxicating liquors for sale, and unless the evidence shows the intent to sell to minors, or otherwise to make prohibited or unlawful sales, he cannot be convicted on the first count in the indictment.”
The judge instructed the jury substantially as requested in the eighth prayer for instructions, but refused to give the other instructions requested by the defendant. A portion of the judge’s instructions was as follows:
“ It is not enough that the certificate is made out in proper form. Before he can justify that, it must be made to appear that the sales were made for medicinal purposes. In other words, the paper does not protect. It must appear on his part that it was for a medicinal purpose. If the defendant believed that it was for that purpose, he would not be liable. If he was deceived in that way, he would not be liable. But if a man came and by the circumstances the defendant knew or had reasonable cause to know that it was not wanted for that purpose, the certificate would not justify the sale. Where he knows or has reasonable cause to believe or know that it was not purchased for that purpose, the certificate would be no protection. When a man comes and says that he wants it for medicinal purposes, what does that mean ? It is a sale made for the purpose of using the liquor as a medicine. When it is used as a medicine it is for some bodily or physical ailment. For that purpose it is right. If for social drinking, as one witness has testified, to treat his friends, or if used to produce intoxication, it is wrong. It is only when taken for some bodily ailment that it is for medicinal purposes. But where the sales were made when the defendant knew, or had reason to know, that they were not sold to be used for medicinal purposes, it is unlawful. The government relies upon the large number of sales to individuals. It is for you to say whether the" defendant knew, or had reasonable cause to know, they were not for medicinal purposes. If not, the certificates would not protect him.”
At the close of the charge the defendant called the attention of the court to the part of the charge above set forth, and excepted thereto.
The jury returned a verdict of guilty on the first count of the indictment, and on each of the four counts charging sales to the minors Barney and Bishop; and the defendant alleged exceptions.
J. Brown, for the defendant.
C. N. Harris, Second Assistant Attorney General, for the Commonwealth, did not care to be heard.
Barker, J. The defendant contends that a license of the sixth class gives to a druggist who complies with the requirements as to the time, place, and manner of making sales the right to sell in all cases, save to prohibited persons, although he may know that the liquors are in fact bought for a purpose for which he has no license to sell, and although they are delivered to a minor. But it is plainly the intention of the statutes, (Pub. Sts. c. 100, §§ 1, 2, 9, 10, 18, St. 1887, c. 481,) that sales of intoxi
The sales to other than prohibited persons were not illegal, if in making them the defendant complied with the statute requirements and acted in good faith, honestly intending to keep within the authority given him by the law, and he could not do this unless he believed the liquors were wanted for an authorized purpose. What in the discussion of propositions of criminal law is often called the intention, is an element in the decision of this question, which is one of fact, and in dealing with it the distinction between belief or knowledge and reasonable cause to know becomes important. Neither knowledge, belief, nor intention can, in the nature of things, be proved except by inference. Reasonable cause to know is not an equivalent to knowledge. Lindsey v. Stone, 123 Mass. 332. Carroll v. Hayward, 124 Mass. 120, and cases cited. It raises a strong inference of knowledge or of belief; but it is nevertheless consistent with the absence of belief as well as of knowledge, and even with the existence of a belief contrary to the real fact; and this, too, on the part of one who has a duty to know. The mind may be preoccupied or slow, and the thought necessary to produce comprehension dormant. The inference from proof of a single circumstance which would be reasonable cause to know must be weaker than that to be drawn when the mind is shown
The counts for sales to minors depend on different considerations, and the error above pointed out had no tendency to affect the action of the jury upon them. One condition of the defendant’s license was, that no sale or delivery should be made
These principles were substantially embodied in the charge to the jury; but the defendant contends that Hill, the clerk, who testified that he had made sales to Henry Bishop, should have been allowed to testify as to what Bishop told him as to his age. But evidence of Hill’s good faith in making sales to Bishop was immaterial to the question whether the defendant was criminally responsible for such sales, and was properly excluded.
The verdicts of guilty upon the second and third counts, charging illegal sales to Barney, are attacked upon a different footing. The evidence tended to show that Barney was an express messenger, and not of full age; that he was accustomed
Dissenting Opinion
I do not agree with the majority of the court in holding that a sale of intoxicating liquors by a licensed apothecary with a purpose to have it used as a beverage is lawful, if the purchaser deceiving him actually intends to use it as a medicine, and that a sale is brought within the protection of the license if either the buyer or the seller, no matter'which, has a purpose to have the liquor used as a medicine.
The act of selling intoxicating liquor without a license is not malum in se, but malum prohibitum. x In prosecutions under statutes regulating the sale of intoxicating liquors, as well as statutes prohibiting the sale of impure milk, it has been held for many years that the law punishes the act without looking for any criminal intent beyond the intentional doing of the thing forbidden. It has been thought that the only practicable way of accomplishing the purpose of the Legislature is to require
The act prohibited is the sale of intoxicating liquor in any way not expressly authorized. The act permitted to an apothecary under his license is a sale “ for medicinal, mechanical, or chemical purposes.” Pub. Sts. c. 100, § 2. A sale of liquor for a medicinal purpose is a sale with an intention that it shall be put to a medicinal use. The use to which it is in fact put after it has been sold is immaterial. The act is complete as soon as the sale is made, its character is permanently fixed, and the sale then is or is not a sale for a medicinal purpose. When the sale is made, the kind of use to which the liquor is to be put is in the future, and whether it is medicinal or otherwise is necessarily a matter merely of expectation and intention. If we contemplate a sale as made for a purpose in regard to the use to which the liquor is to be put, the purpose is to be determined, not by the use to which it afterwards happens to be put, but by that to which the seller intends that it shall be put. The sale licensed is a sale for a specified purpose; that is, a sale with a view to the appropriation of the liquor to that purpose or expected use. The liquor may or may not afterwards be used as expected. A sale which is not made for such a purpose and with such a view is unlawful. The characterization which distinguishes the act as lawful or unlawful pertains to the sale, not to the purchase.
It is true that his purpose relates to that which he expects will be done by the buyer. But the law prescribes elaborate requirements, which are intended to inform him what use the buyer expects to make of the liquor, so that he will not be likely to sell it for a medicinal purpose unless the buyer buys it for the same purpose. But if the intentions of the two parties to the sale are different, the statute looks to the intention of the seller. The vendor and vendee stand in different relations to a sale, and the purpose or intention of one in reference to the use to be made of an article sold may differ from that of the other. The statute deals with a single purpose, not with two different purposes.
As I understand it, the case stands thus. An apothecary sells intoxicating liquor. He is to be punished if the sale is not permitted by his license. It is not permitted by his license unless it is a sale for a medicinal purpose; that is, a sale with a view to have the liquor used as a medicine. It either is or is not a sale for a medicinal purpose as soon as it is made. In a supposable case, the parties to the transaction, through the deception of one of them, entertain different purposes in regard to the use to be made of the liquor. The test of legality established by the statute is a purpose or intention in regard to that. It cannot be two different purposes which are not in harmony. If it is the purpose of the seller, and if his purpose is that the liquor shall be used as a medicine, and if the forms of law are complied with, it makes no difference whether the purchaser afterwards uses it as a medicine or as a beverage, and it is of no consequence what the secret intention of the purchaser is in regard to it. On the other hand, if it is the purpose of the buyer, and the buyer intends to use it as a bev
It seems to me that the doctrine of the opinion requires us to hold that the sale is for a medicinal purpose, and the act of selling is within the protection of the license, if either the buyer or the seller intends that the use of the liquor shall be medicinal, although the other entertains an opposite purpose, so that the purpose referred to by the statute in any case may be that either of the buyer or of the seller, with nothing to show which, or else requires us to overrule the construction which has been put upon the statute in many cases, by which it is settled that a defendant is punishable if he does the prohibited act, and that guilty knowledge is not necessary to his conviction.