141 Mass. 270 | Mass. | 1886
This complaint charges that the defendant, on October 3, 1885, unlawfully sold intoxicating liquor between the hours of eleven at night and six in the morning. St. 1885, c. 90, § 1. At the trial, it appeared that the defendant kept a restaurant and saloon; and that he had a license, one of the conditions of which was that no sale of spirituous or intoxicating liquor should be made therein between the hours of eleven at night and six in the morning. There was evidence tending to show a sale by one of the defendant’s waiters of a bottle of Bass’s ale after eleven o’clock at night on the day named in the
-It may be that a license is forfeited by the unauthorized act of another person, done without the knowledge and against the express directions of the licensee. The Legislature has judged it wise, in view of the many devices resorted to in order to evade the law, to make the conditions of licenses very stringent. It has been held in several cases that a licensee takes his license subject to the conditions, whatever they may be, and is bound at his peril to see that these conditions are complied with, or to lose the protection of his license. Commonwealth v. Uhrig, 138 Mass. 492. Commonwealth v. Barnes, 138 Mass. 511, and cases cited. But the question in this case is not -whether the defendant’s license is forfeited.
The complaint is not brought under the Pub. Sts. e. 100, § 18, alleging that he has violated the provisions of his license. It is brought under the first section, which provides that “ no person shall sell, or expose or keep for sale, spirituous or intoxicating liquor, except as authorized in this chapter.” It was held in Commonwealth v. Nichols, 10 Met. 259, decided under a law similar in its terms, that the defendant was not liable criminally as a seller, when the sale proved was made by a servant without his knowledge, in opposition to his will, and which was in no way participated in, approved, or countenanced by him. This decision is conclusive of the case before us. It would require a clear expression of the will of the Legislature to justify a- construction of a penal statute which would expose an innocent man to a disgraceful punishment for an act of which
Section 1, upon which the complaint in the case at bar is based, subjects to punishment any person who sells liquor unlawfully. It is to be presumed that the Legislature intended to use the language in its natural sense, and with the meaning given to equivalent language by the court in Commonwealth v. Nichols. It is not a necessary or reasonable construction to hold that it subjects to punishment a person who does not sell, because a servant in his employment, in opposition to his will and against his orders, makes an unlawful sale. We are therefore of opinion that the instruction requested by the defendant should have been given. Of course, it would be for the jury, under the instruction, to determine whether the defendant did, in good faith, give instructions, intended to be obeyed and enforced, that no sale should be made after eleven o’clock. If he did, and a sale
Exceptions sustained.