175 Mass. 325 | Mass. | 1900
In the first of these cases the defendant is complained of for a violation of Pub. Sts. c. 68, § 16, in selling ice in a street in Boston without license from the Secretary of the Commonwealth.
The motion to quash was rightly overruled. It is too late to object in the Superior Court that a complaint originally filed in an inferior court is insufficient in form. Pub. Sts. c. 214, § 25. Commonwealth v. Doherty, 116 Mass. 13. Commonwealth v. Donahoe, 130 Mass. 280. The complaint in the case at bar follows the language of Pub. Sts. c. 68, § 16, and describes, certainly with substantial, if not with formal, accuracy a violation of that act. It does not, in form or in substance, describe, a violation of St. 1890, c. 448, forbidding an itinerant vendor, who is therein defined to be a person engaged in a temporary business and who, for the purpose of carrying on such business, hires, leases, or occupies a building for the exhibition and sale
The first instruction requested was rightly refused. The complaint did allege an offence. We are of opinion that ice is not included in the term “ provisions,” within Pub. Sts. c. 68, § 1, providing that any person may go from place to place in the same town exposing for sale and selling, among other things, provisions. The word “ provisions ” means food, victuals, fare, provender. Ice is neither food, victuals, fare, or provender. This case is not affected by St. 1899, c. 260, subsequently enacted, providing that Pub. Sts, c. 68, § 1, shall apply to ice as well as to provisions.
There was evidence proving the offence complained of. Driving a load of ice through the streets, calling out “ Ice, ice,” and twice selling ice to a person standing in the street who then and there paid for the same, is sufficient evidence that the defendant was going from place to place carrying and exposing merchandise for sale. The fact that the defendant did this as an employee of a solvent corporation which not only sent out a cart to peddle ice, as the evidence in the case at bar tended to show, but. also delivered ice to persons who had previously ordered the same, and the further fact that the occupants of the house, to which the complainant had directed the ice bought by him on the street to be delivered, were among the customers given in the list handed by the company to the defendant, do not make the actions of this defendant here complained of any the less a violation of Pub. Sts. c. 68, § 16. If the defendants wished to raise the question whether the general scope of the defendant’s business was delivering ice to those who had previously bought it, and that the sales testified to were exceptional and not in the course of his ordinary business within Commonwealth v. Farnum, 114 Mass. 267, 271, he should have asked to have that fact left to the jury, under appropriate instructions. In view of the fact that the defendant was driving along calling out- “ Ice, ice,” the two sales made by him on the street were evidence on which the jury were warranted in finding that selling .ice from a wagon driven by him was within the general scope of his business; there was no evidence that
The second and third instructions present the questions presented by the motion to quash, and have already been disposed of in that connection.
The fourth instruction was rightly refused. There was no evidence that “ the defendant was a selling agent in the usual course of business of a trader occupying a building for the sale of his goods,” and the provisions of St. 1890, c. 448, § 2, exempting such selling agents from the provisions of that act, had no bearing upon this case, in which the defendant was complained of for violating Pub. Sts. c. 68, § 16.
The fifth instruction is but a repetition of the second part of the first instruction, and has been already disposed of in that connection.
The sixth instruction was rightly refused. The fact that the defendant, some time after these sales were made, ceased to be employed by the Boston Ice Company, shows that he was temporarily employed in the established business of that company, not that, at the time in question, he was engaged in a temporary or transient business. He was not engaged in a temporary or transient business within St. 1890, c. 448; and, if he was engaged temporarily in peddling ice for that company, he was guilty of a violation of Pub. Sts. c. 68, § 16.
The seventh request was also rightly refused. The evidence did not tend to prove that the defendant was an itinerant vendor, within St. 1890, c. 448, but did tend to show that he was peddling ice for the Boston Ice Company, which also conducted an established business in selling ice.
The second case was a complaint for the violation of the Revised Ordinances of the City of Boston, of 1892, c. 43, § 35, providing that “ Ho person shall, except in accordance with a permit from the superintendent of streets, in any street or from any building sell any goods or article to any person on the street, or in any street, place, or permit to remain for more
In this case, the defendant made the same motion to quash and the same request for instructions made by him in the preceding case. i
The complaint alleges a violation of the ordinance stated above “fully, plainly, substantially, and formally,” within Pub. Sts. c. 213, § 17, which provide that in such a case the by-law on which the complaint is founded need not be set forth. It would have been enough if the complaint had been substantial, because the defendant by not objecting in the inferior court to any defence of form had lost his opportunity to raise those questions at all.
That the by-law in question is a valid exercise of the power given to the city of Boston to exercise the powers set forth in Pub. Sts. c. 27, § 15, was decided by this court in Commonwealth v. Ellis, 158 Mass. 555. Exceptions overruled.
