Commonwealth v. Savery , 145 Mass. 212 ( 1887 )

Field, J.

At the argument in this court, the counsel for the defendant conceded that, if the defendant kept the beer with the intention of selling it, it was not a defence to show that he believed that the beer contained not more than three per cent of alcohol. The keeping of intoxicating liquor for sale without a license is prohibited from considerations of public policy, and the defendant was bound to know the kind and quality of the articles he kept for sale. Commonwealth v. Boynton, 2 Allen, 160. Commonwealth v. Goodman, 97 Mass. 117. Commonwealth v. Raymond, 97 Mass. 567. Commonwealth v. Hallett, 103 Mass. 452. The ruling of the court was in accordance with this view of the law, and the first three instructions asked for by the defendant ought not to have been given.

There is more difficulty in considering the fourth request. The counsel for the defendant contends, that if the defendant kept the beer, not with the absolute intention of selling it, but with the intention of first testing or analyzing it in order to ascertain the amount of alcohol it contained, and then of offering it for sale only if it was found to contain not more than three per cent of alcohol, he could not be convicted. It is unnecessary to determine the correctness of this contention. The fourth request is not predicated upon the assumption that the defendant actually had the intention of testing or analyzing the beer before offering it for sale, but upon the assumption that he would have found out that the beer was lager beer before he attempted to sell it, and that, if he had found this out, he would not have sold it.

It is implied in the exceptions that what is called three per cent beer is different from lager beer, but it is not found or implied that they differ except in the amount of alcohol they respectively contain. It does not appear that they are distinguishable in appearance by persons having no special knowledge of beer, or that one is anything more than a weaker solution of the other.

It may be that if a person, for example, keeps soda water in bottles for sale, and if by mistake a case of lager beer instead of soda water has been left at his place of business by the person of whom he has ordered soda water, he could not be convicted of keeping lager beer for sale, if he never intended to sell lager beer, and if the mistake would have been detected before the lager beer was offered for sale, and the beer would not have been sold by him. Soda water and lager beer are articles of different kinds, easily distinguishable at sight, and a person may well intend to deal in one and not in the other. If, however, a person keeps beer containing alcohol for sale without a license, intending that the beer shall not contain more than three per cent of alcohol, and by mistake he buys beer for sale which contains more than this amount of alcohol, he may be said to keep this beer with the intention of selling it, unless his intention is that the quantity of alcohol in the beer shall be ascertained by examination or analysis before it is offered or exposed for sale. This is merely a mistake in the quality of the article he intends to sell, which may or may not be discovered before he sells it.

The defendant testified “ that he purchased this beer in good faith for three per cent beer; and that if he had found, when he opened the beer, that it was lager beer, he should not have sold it; ” and that the beer found on his premises was left there by mistake. The nature of the mistake does not appear, unless it was the mistaken belief on the part of the buyer, and perhaps of the seller, that the beer did not contain more than three per cent of alcohol. Upon this evidence, the jury were not required to speculate upon the probability of the defendant’s finding out that the beer contained more than three per cent of alcohol before he sold it, in the absence of evidence that he actually intended to test the beer before he offered it for sale.

Exceptions overruled.