Commonwealth v. Rooks , 1889 Mass. LEXIS 12 ( 1889 )

Devens, J.

The instructions as given directed the jury to acquit if a sale to a minor was made by the defendant’s servant without his knowledge, authority, or consent, or if the government failed to prove that the sale by the servant was a sale within the scope of his authority; they treated a sale made by a servant at the back door of licensed premises as prima facie one for which the employer was not liable, and required affirmative proof that it was made in the presence, or with the consent, of the employer ; and they held the defendant not liable if the servant wilfully, or in violation of directions, sold intoxicating liquors to a minor, unless the sale was made with the knowledge or consent of the defendant. These instructions were all that the case required, and were given at the request of the defendant. We must assume that they were supplemented by proper instructions as to the burden of proof and the presumed innocence of the defendant, as other instructions were given covering the whole subject matter of the defendant’s requests, and not objected to, except that they were not in all respects equivalent to all those asked for by the defendant.

While the defendant contends that the second, third, and eighth instructions requested by him should have been given, he does not show in what respect those which were given were deficient in properly protecting the rights of the defendant, or why the exact phraseology contained in the other requests should have been adopted. These were all in some respects objectionable. The second would have required of the Commonwealth to show a “ knowledge and consent to the general violation of the law by his servant,” whereas knowledge or consent in the particular • instance was all that was demanded. The third would have required the jury to acquit, if the servant, during the absence of his master, violated his direction or order, without regard to the question whether the order was honestly given under such circumstances that it was intended to be obeyed. If such was not its meaning, the point had been sufficiently covered by the instructions before given. The eighth instruction, that “ the mere presence of an employer when a criminal act is committed, unless the employer consents to it and participates in it by such consent, does not constitute him a criminal,” would have led without explanation to the supposition that there must be some additional evidence besides the presence of the employer to establish his consent, and that it could not be inferred from his presence and knowledge merely.

At the trial, the Commonwealth relied upon a sale, made on May 28, by the defendant’s bar-tender to a boy named Curry. There was evidence from a witness, Julia Mendoz, that she had often seen the boy going into the defendant’s saloon, and that on the Saturday previous to May 28 she saw him go to the saloon, that the defendant himself was sitting in the front window of his bar-room, and that as the boy went into the saloon the defendant got down from the window, and in a few minutes after the boy came out. Whether he got anything or not, the witness could not say. To the admissibility of this evidence the defendant excepted. In answer to a question by the court, the jury stated that they did not regard the evidence as to anything previously to May 28. Assuming in favor of the defendant’s contention that it was not competent for the jury after verdict to say that they disregarded evidence which had been improperly admitted, so as to remove the effect of an error made in its admission, we are of opinion that the evidence was admissible. It was controverted whether, if a sale to the boy had been made by the bar-tender, it had been so made with the knowledge and consent of the defendant. It was denied that the boy Curry was ever in the shop or permitted to be there. The fact that the boy was often seen going into the bar-room, and that on one occasion it might fairly be inferred that the defendant himself attended upon and had some transaction with him, had a tendency to show that, if any sale was actually made to him by the bar-tender, it was made with the defendant’s consent. Exceptions overruled.