Commonwealth v. Walsh , 165 Mass. 62 ( 1895 )

Knowlton, J.

The only exception argued in this case is to an instruction of the presiding justice to the jury as follows: “ If” the defendant’s wife “ kept in the house of her husband or in the premises which were occupied and controlled by her husband, and if the store was in her husband’s house it would still be under his control, . . . intoxicating liquors for sale in violation of law, then he will be liable therefor under this complaint if he has knowledge of the fact and of her intent, unless he uses reasonable means to prevent her from carrying out such intent, and there is no evidence that this defendant has used or attempted to use such means, nor has he contended that he did so.” This instruction was in accordance with the decisions of this- court. Commonwealth v. Wood, 97 Mass. 225. Commonwealth v. Barry, 115 Mass. 146. Commonwealth v. Kennedy, 119 Mass. 211. Commonwealth v. Carroll, 124 Mass. 30.

Upon the hypothesis stated in the instruction, the defendant unquestionably kept the tenement. The tenement was unquestionably “ used for the illegal keeping or sale of intoxicating liquor,” and therefore under Pub. Sts. c. 101, § 6, was a common nuisance. Even if the defendant was ignorant of the illegal use which was being made of his tenement, he was within the terms of the statute which prescribes punishment "for a person who keeps a common nuisance. There is a moral, if not a legal obligation, upon one in the occupation of real estate to see that it is not so kept or used as to be a common nuisance; and if this statute were construed like other statutes in regard to the unlawful sale of intoxicating liquor, the keeper of a tenement which was in fact under the law a common nuisance would be punished, whether he knew of the use which made it a nuisance or not.

But if we construe this statute more favorably to persons accused, and hold that an intent to violate the law must be proved, and that a keeper of a tenement is not liable criminally if, while he uses due diligence, his house is a common nuisance by reason of its use for the unlawful sale of intoxicating liquors by a boarder or lodger without his knowledge, it does not relieve the defendant in this case. The question whether a keeper of a tenement is liable criminally for individual acts of' unlawful sale of liquors made in bis house by his wife, from her own property, is very different from the question whether he is-liable for continuing to keep the common nuisance if he knows-of the unlawful use of his property and takes no measures to prevent it. Discussions of the question how far a husband is-liable criminally for unlawful acts done by his wife in his actual or constructive presence have little relevancy to the question last above stated. When the tenement is the sole and separate property of the wife, and she has such legal control of it as its ownership gives her, it is a question of more difficulty whether he or she keeps it within the meaning of the statute. Even in such, a case it has been held that, if the building is their dwelling-house,.the husband so far participates in keeping it for an illegal’ purpose as to make him subject to punishment. Commonwealth v. Wood, 97 Mass. 225. Commonwealth v. Carroll, 124 Mass. 30.

The defendant relies upon Commonwealth v. Hill, 145 Mass. 305. The decision in that case is merely that certain evidence was wrongly excluded, and is entirely consistent with the instruction given in the present case. The discussion in the opinion relates to facts very different from those assumed in the instruction before us. The title to the real estate in that case was in the defendant’s wife, and the evidence tended to show that the unlawful business was carried on by her on her own account, and the defendant offered evidence that he had “ used all reasonable and practicable means in his power to prevent his wife from doing any of the acts charged, and that his wife told him the property was hers, and she would do as she pleased.” So far as the language of the opinion tends to modify anything that has been said in previous decisions, it relates to cases where - the punishable act is done by the wife, and the question is whether the husband is liable by reason of coercion or participation, while in the case now before us the husband, and not the wife, was confessedly the keeper of the teneihent which was so used as to be a nuisance.

The criminal intent involved in the commission of this crime is the intent to keep the tenement, knowing and suffering it to be a common nuisance. It is immaterial who does the other unlawful acts which make it a common nuisance. The keeper’s knowledge that it is a nuisance, unaccompanied by active efforts to prevent its being offensive in the eye of the law, is guilty knowledge, which makes him punishable under the express terms of the statute for keeping it.

In the opinion of a majority of the court the entry must be,

Exceptions overruled.