Commonwealth v. Gray , 150 Mass. 327 ( 1889 )

Devens, J.

The St. of 1886, c. 817, § 1, requires that, in the sale at retail of any article, substance, or compound in imitation of butter, the seller or his agents shall attach to each package so sold, and shall deliver to the purchaser, a label or wrapper of a specified character, describing the article. It imposes a penalty upon the seller for any sale made in violation of the provisions of the act, and the principal is made liable for the acts of his agent in making sales contrary to such provisions. But one offence is described in § 1, which may be committed either by the seller personally, or through his agent, for whom he is thus made responsible. It was sufficient in the case at bar that the complaint charged the offence to have been committed by the defendant, without alleging the manner in which he had committed it, whether by himself strictly, or by an agent for whom he was responsible. The latter fact had relation only to the mode of proof of the charge, and it was correctly held, that an allegation that the sale with which the defendant was charged was actually made by his agent was not necessary.

The sale of the compound was, as the evidence tended to show, made by the defendant’s agent within the scope of his agency, and the defendant asked the court to instruct the jury that if the act alleged (the failure to use the wrappers provided by the defendant upon the package) was the result of inadvertence on his agent’s part, and not intentional, the jury would not be justified in convicting the defendant. This request was properly refused. The offence was of that class in which it is not necessary to prove any guilty intent. If the defendant engaged in the business of selling imitation butter, whether he conducted it by himself or his agent, he was bound at his peril to see that the provisions required by the law in the management of it were observed. One who sells intoxicating liquor not knowing it to be intoxicating, or adulterated milk not knowing it to be adulterated, is, under our statutes, liable therefor, although he had no guilty intent. Commonwealth v. Boynton, 2 Allen, 160. Commonwealth v. Farren, 9 Allen, 489. Commonwealth v. Nichols, 10 Allen, 199. Commonwealth v. Waite, 11 Allen, 264. Where an act is forbidden by positive law except where certain precautions are observed, neither ignorance of them, nor the failure to observe them through inadvertence, affords an excuse, whether this is the ignorance or inadvertence of the person himself, or of his agent acting within the scope of the agency with which he has been intrusted.

."Exceptions overruled.