Commonwealth v. McGuire , 77 Mass. 460 ( 1858 )

Dewey, J.

The single question in the present case is whether, upon the evidence, the sale of liquors was properly charged in the complaint as a sale to John Kennedy. The defendant insists that it can only be held to have been a sale to Ellen Kennedy, and relies upon the cases of Commonwealth v. Kimball, 7 Met. 308, and Commonwealth v. Remby, 2 Gray, 508, as sustaining this view of the case. But those cases, upon a careful examination, do not sustain the position taken in the defence. The case of Commonwealth v. Kimball was an indictment for a sale to an agent who did not disclose his principal, and in this respect was, in its facts, like the present case; but the indictment alleged the sale to have been made to the agent, and the court held that this might be so alleged. But the opinion goes no further, and does not hold that it might not have been also properly alleged to have been a sale to the principal, if such principal had been subsequently disclosed. The case of Commonwealth v. Remby was a case of a sale to an agent, who fully disclosed his principal to the vendor at the time of the sale, and informed him that a third person furnished the money, and that the liquor was bought for such person; and upon these facts, the court held that the sale could not properly be charged as a sale to the agent. It is hardly necessary to say that the case last cited differs entirely from the present case, inasmuch as the agency being disclosed, and the principal known to the vendor, it could in no aspect be treated as a sale to the agent. The only case, therefore, that can be considered as having been decided upon a state of facts similar to the present is that of Commonwealth v. Kimball. As already stated, the decision in that case was that the sale might be alleged as a sale to the agent. This is doubtless true, but does not conflict with the ruling in the present case, that, upon the principal being disclosed, it might also be charged as a sale to the principal. If. goods were sold on credit under similar circumstances, it would be optional with the vendor to treat the sale as made to the agent, or the principal, as he might elect. We think the government may, in an indictment describing such sale, allege it in either form ; as a sale to the agent, or to the afterwards disclosed principal. Exceptions overruled.