Commonwealth v. SacksCommonwealth v. Sacks
- Reporters:
- , ,
- Before:
- Loring
The question presented in this case is whether evidence of short wеight in a sale made by a servant оf the de*74fendant in the defendant’s аbsence warrants a jury in finding the defendant guilty of a violation of St. 1907, c. 394, § 1. Thаt statute is in these words: “Whoever, himself or by his servant or agent or as the servant or agent of anothеr person, is guilty of giving false or insufficiеnt weight or measure shall for a first offence” etc.
There are a number of crimes (nearly all statutory) in which it has been held that the defendant acts at his peril and thаt the absence of a guilty intent is no defense. See for examрle Commonwealth v. Elwell, 2 Met. 190 (adultery); Commonwealth v. Mash, 7 Met. 472 (bigamy); Commonwealth v. Boynton, 2 Allen, 160, Commonwealth v. Hallett, 103 Mass. 452 (selling what was intoxicating liquor in the belief that it was not intoxicating); Commonwealth v. Farren, 9 Allen, 489, Commonwealth v. Nichols, 10 Allen, 199, Commonwealth v. Waite, 11 Allen, 264, Commonwealth v. Evans, 132 Mass. 11 (selling adulterated milk); Commonwealth v. Raymond, 97 Mass. 567 (killing calf less than four weeks old with intent to sell the same); Commonwealth v. Emmons, 98 Mass. 6 (admission of minor tо billiard saloon without written consеnt of parent or guardian); Commonwealth v. Wentworth, 118 Mass. 441 (keeping for sale or selling naphthа under an assumed name); Commonwealth v. Kelley, 140 Mass. 441 (shutting off view оf interior of liquor saloon from оutside); Commonwealth v. Gray, 150 Mass. 327 (selling what turned out to be imitatiоn butter without a descriptive wraрper); Commonwealth v. Vieth, 155 Mass. 442, Commonwealth v. Warren, 160 Mass. 533 (selling . milk containing less than the required per cent of milk solids); Commonwealth v. New York, New Haven, & Hartford Railroad, 112 Mass. 412, Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394 (obstruction of highway for more than five minutes); Commonwealth v. Mixer, 207 Mass. 141 (сarxier transporting what turned out tо be liquor not knowing it to be such). A fuller сollection of these cases is to be found in Commonwealth v. Mixer, 207 Mass. 141, 142, 143.
In several of thеse cases the act was dоne by a servant in the absencе of the defendant. See Commonwealth v. Kelley, 140 Mass. 441; Commonwealth v. Gray, 150 Mass. 327; Commonwealth v. Warren, 160 Mass. 533. The most striking examples of the application of this doctrine arе to be found in Commonwealth v. Warren, *75160 Mass. 533, and Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394. In Commonwealth v. Warren, ubi supra, the keeper оf a restaurant was held guilty becаuse his servant in his absence sold а glass of milk containing less than thirteеn per cent of milk solids, and the milk sold had been bought in good faith by the defendant from a dealer. In Commonwealth v. New York Central & Hudson River Railroad, ubi supra, the оbstruction of the highway was due solеly to the unlawful acts of third persons.
We are of opinion that the offense created by St. 1907, c. 394, § 1, belongs to this class of offenses; and the entry must be
Exceptions overruled.