Commonwealth v. Hayes , 145 Mass. 289 ( 1887 )

Field, J.

The provision of the Pub. Sts. c. 169, § 18, cl. 1, that “ neither husband nor wife shall be allowed to testify as to private conversations with each other,” is not confined to conversations upon subjects which are confidential in their nature, and it includes conversations between them relating to business done by one as agent of the other. If the defendant could not be allowed to testify that she gave directions to her husband relating to her business, for the purpose of showing that they were given, she could not be allowed to testify that she gave them, for the purpose of proving that she acted in good faith in giving them. The evidence offered was rightly excluded. Dexter v. Booth, 2 Allen, 559. Jacobs v. Hesler, 113. Mass. 157. Drew v. Tarbell, 117 Mass. 90. Brown v. Wood, 121 Mass. 137.

The fourth and fifth instructions given relate to the good faith of the defendant in giving directions as to the management of her business. The presiding justice had already instructed the jury in conformity with the decision in Commonwealth v. Wachendorf, 141 Mass. 270. If from the nature of the business and the character of the servants employed in it, the defendant could not reasonably expect her directions to be obeyed, and if she took no care, and exercised no supervision, for the purpose of ascertaining that her directions were obeyed, it was competent for the jury to find that the directions were not given in good faith, and that the sales of intoxicating liquors on which the Commonwealth relied were made with her consent. It might be contended that she could not be convicted if she in fact expected that her directions would be obeyed, although this was not a reasonable expectation. We think that it was the duty of the defendant, if she intended to raise this question, distinctly to have called the attention of the court to it. The exceptions to this part of the charge are general, and must be overruled.

In Commonwealth v. Wachendorf, ubi supra, the defendant had a license, and the complaint charged that he unlawfully sold intoxicating liquors “ between the hours of eleven at night and six in the morning,” and it was said in the opinion “ 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,” and Commonwealth v. Nichols, 10 Met. 259, was cited.

Commonwealth v. Nichols arose under the Rev. Sts. e. 47, § 2, and it was said in the opinion “ that a sale by the servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without license ,* that the relation of these parties, the fact that the defendant was in possession of the shop and was the owner of the liquor, and that the sale was made by his servant, furnish strong evidence to authorize and require the jury to find the defendant guilty.....Unexplained, they would be sufficient to convict the party.”

In Commonwealth v. Briant, 142 Mass. 463, and in Commonwealth v. Stevenson, 142 Mass. 466, the complaints were for unlawfully selling intoxicating liquors to a minor, and the rulings which were held to be erroneous were to the effect that a sale of intoxicating liquors by a bar-tender in his master’s shop, and in the regular course of his master’s business, was prima facie a sale by the master, whether made to a minor or any other person. In Commonwealth v. Briant, it was said that, “ although we should admit that a jury might be warranted in inferring that such a sale was authorized, it would not follow that a court could rule that there is a presumption of fact that it was so, which is the purport of the instruction fairly construed.”

These last cases must be taken to have decided that, in complaints for unlawfully selling intoxicating liquors, it is a question of fact for the jury whether a sale by a servant in violation of a license was made by the authority or with the consent of his master, and that no presumption of law of any kind arises from the facts that it was made by the servant in his master’s shop, in the ordinary course of the master’s business, and from liquors owned by the master and there kept for sale. Evidence of these facts may be sufficient to warrant a jury in inferring as a fact that the sale was made by the authority or with the consent of the master, but the weight of this evidence and the inferences to be drawn from it are for the jury.

Whether evidence, if believed, is sufficient to warrant a jury in finding a defendant guilty, is a question of law; and if the presiding justice in this case had charged the jury that, “ nothing to the contrary appearing, evidence of a sale by a servant, in his master’s shop, of his master’s goods there kept for sale, would, if believed, warrant the jury in finding that the sale was authorized by the master,” the instructions would perhaps have been unobjectionable. The expression, that “the natural and just inference from ” such a sale is that it “ was authorized by the master,” may be considered, either as an expression of an opinion by the justice that the jury ought to find, if nothing to the contrary appeared, that the sale was in fact authorized by the master, or as a strong statement of the law that they would be warranted in so finding. Whether the first clause of the charge ought to be held to be such an expression of an opinion upon a matter of fact as to require- a new trial, we need not decide. The second clause of the charge, although not specifically excepted to, puts upon the defendant the burden of clearly showing that the sale, if made by a person employed by her to conduct her business in the hotel, was made “without the defendant’s knowledge, and really in opposition to her will, and the defendant in no way participated in, approved, or countenanced such sale.” The two clauses, taken together, may well have been understood by the jury to mean that the presumption was that a sale made by a servant, under the circumstances stated, was a sale authorized by the defendant, and that it was for the defendant clearly to show that the sale was made without her knowledge, and in opposition to her will, in order to escape criminal responsibility. It was wholly a question of fact whether the sales proved were made by the authority or with the consent of the defendant, and the burden was upon the government to prove this fact beyond a reasonable doubt. We think that the charge in this respect was. erroneous.

Exceptions sustained.