Commonwealth v. Merriam
148 Mass. 425
Mass.
1889
Check Treatment
By the Court.

The evidence clearly shows that the tenement named in the complaint was used for the illegal sale of *427intoxicating liquors. There was evidence that sales were made by the defendant, that he was about the premises when sales were made by other persons, that he had the keys of the doors of the different rooms, that the bills of the business, though made out in the name of the “ American Bottling Company,” were mostly paid by him, and that, after this complaint was made, he said to the complainant that, if it “ could be settled or discontinued, he would stop selling hard stuff.” These were acts and declarations indicating that he was the owner or in control of the premises, and the evidence was properly submitted to the jury, and justified them in finding that the defendant was the keeper of the tenement.

The instructions requested by the defendant, except so far as covered by the instructions given, were properly refused. The court ruled that the government must prove that the defendant kept and maintained the tenement for the sale of intoxicating liquor during some part of the time named in the complaint. It could not properly rule as requested, that, if the defendant was acting as a servant or employee of another, he could not be convicted. A servant who illegally sells intoxicating liquor in a tenement, in the presence and under the direction and supervision of his master, cannot be convicted of keeping and maintaining the tenement. But if the master intrusts to him the management and control of the business, and he carries it on in the absence of his employer, both the employer and the servant may be convicted of keeping and maintaining the tenement. Commonwealth v. Churchill, 136 Mass. 148. Commonwealth v. Galligan, 144 Mass. 171. Commonwealth v. Murphy, 145 Mass. 250.

The instructions given to the jury were in conformity with these decisions, and were correct.

Exceptions overruled.