It was conceded by the defendant that at the time alleged he had in his pocket, on his person, intoxicating liquor which he intended to sell in violation of law. He was “ keeping ” the liquor in his pocket. The case is strictly within the provisions of the statute under which he was indicted. It makes no difference that he intended to make the sales in the presence of his employer. It is well settled that it is no defence for one who commits a crime to show that he was acting as a servant, in the presence and under the direction of his master. Commonwealth v. Hadley, 11 Met. 66. Commonwealth v. Drew, 3 Cush. 279.
It is contended that the doctrine of the cases in which it is held that the mere sale of intoxicating liquors by a servant in the presence of his master is not such a participation in the act of keeping and maintaining a tenement used for the sale of intoxicating liquors as to make his servant liable, should be extended to this case. But the reason of these decisions is that the substantive offence is the keeping and maintaining of a tenement devoted to a particular illegal use, not the doing of the other illegal acts which give the tenement its character. These acts are distinct offences, for which there may be separate indictments. A mere visitor or boarder may repeatedly, from time to time, sell intoxicating liquor in a building without having anything to do with keeping and maintaining the building, yet the building is used for the illegal sale of intoxicating liquor, whereby it becomes by force of the statute a common nuisance, for the maintenance of which the keeper is liable. Pub. Sts. c. 101, §§ 6, 7. Commonwealth v. Churchill, 136 Mass. 148. Commonwealth v. Brady, 147 Mass. 583, 584. The doctrine of these cases is not to be extended to facts of a different character.
In Commonwealth v. Kern, 147 Mass. 595, Chief Justice Morton says: “ The offence of keeping intoxicating liquors with intent to sell the same unlawfully is different in its character from
Exceptions overruled.