196 Mass. 60 | Mass. | 1907
We assume for the purpose of this opinion that the crime created by R. L. c. 100, § 50, is one of those crimes where the defendant acts at his risk, and where it is no excuse that he made an honest mistake, like the crimes before the court in Commonwealth v. Boynton, 2 Allen, 160, Commonwealth v. Uhrig, 138 Mass. 492, Commonwealth v. Stevens, 153 Mass. 421; S. C. 155 Mass. 291.
In such cases the defendant is liable in case he does the act although he did it under an honest mistake. Commonwealth v. Boynton, 2 Allen, 60. Commonwealth v. Stevens, 153 Mass. 421, 425.
And the servant is liable although he did the act under an honest mistake. Commonwealth v. Green, 163 Mass. 103. Commonwealth v. Stevens, 153 Mass. 421, 425.
The question here is under what circumstances the master is liable when the act is done by the servant.
It is not enough that it was done in the course of the servant’s employment in the master’s business. Commonwealth v. Stevens, 153 Mass. 421; S. C. 155 Mass. 291.
To convict a master for the act of the servant the government must show that the master participated in the act or countenanced it or otherwise approved of it. Commonwealth v. Stevens, 153 Mass. 421; S. C. 155 Mass. 291. Commonwealth v. Joslin, 158 Mass. 482, 495.
It follows that the concession made “ that it was within the scope of Molloy’s authority from the defendant to keep the express book” was not decisive of the defendant’s liability. It also follows that the judge was wrong in excluding evidence as to “ What instructions, if any, he [the defendant] gave Molloy in relation to conducting the business,” and evidence to the effect that he, the defendant, “ told Molloy to run the business
Exceptions sustained.
