Commonwealth v. Sacks , 214 Mass. 72 ( 1913 )

Loring, J.

The question presented in this case is whether evidence of short weight in a sale made by a servant of the defendant in the defendant’s absence warrants a jury in finding the defendant guilty of a violation of St. 1907, c. 394, § 1. That statute is in these words: “Whoever, himself or by his servant or agent or as the servant or agent of another person, is guilty of giving false or insufficient weight or measure shall for a first offence” etc.

There are a number of crimes (nearly all statutory) in which it has been held that the defendant acts at his peril and that the absence of a guilty intent is no defense. See for example Commonwealth v. Elwell, 2 Met. 190 (adultery); Commonwealth v. Mash, 7 Met. 472 (bigamy); Commonwealth v. Boynton, 2 Allen, 160, Commonwealth v. Hallett, 103 Mass. 452 (selling what was intoxicating liquor in the belief that it was not intoxicating); Commonwealth v. Farren, 9 Allen, 489, Commonwealth v. Nichols, 10 Allen, 199, Commonwealth v. Waite, 11 Allen, 264, Commonwealth v. Evans, 132 Mass. 11 (selling adulterated milk); Commonwealth v. Raymond, 97 Mass. 567 (killing calf less than four weeks old with intent to sell the same); Commonwealth v. Emmons, 98 Mass. 6 (admission of minor to billiard saloon without written consent of parent or guardian); Commonwealth v. Wentworth, 118 Mass. 441 (keeping for sale or selling naphtha under an assumed name); Commonwealth v. Kelley, 140 Mass. 441 (shutting off view of interior of liquor saloon from outside); Commonwealth v. Gray, 150 Mass. 327 (selling what turned out to be imitation butter without a descriptive wrapper); Commonwealth v. Vieth, 155 Mass. 442, Commonwealth v. Warren, 160 Mass. 533 (selling . milk containing less than the required per cent of milk solids); Commonwealth v. New York, New Haven, & Hartford Railroad, 112 Mass. 412, Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394 (obstruction of highway for more than five minutes); Commonwealth v. Mixer, 207 Mass. 141 (carxier transporting what turned out to be liquor not knowing it to be such). A fuller collection of these cases is to be found in Commonwealth v. Mixer, 207 Mass. 141, 142, 143.

In several of these cases the act was done by a servant in the absence of the defendant. See Commonwealth v. Kelley, 140 Mass. 441; Commonwealth v. Gray, 150 Mass. 327; Commonwealth v. Warren, 160 Mass. 533. The most striking examples of the application of this doctrine are to be found in Commonwealth v. Warren, 160 Mass. 533, and Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394. In Commonwealth v. Warren, ubi supra, the keeper of a restaurant was held guilty because his servant in his absence sold a glass of milk containing less than thirteen per cent of milk solids, and the milk sold had been bought in good faith by the defendant from a dealer. In Commonwealth v. New York Central & Hudson River Railroad, ubi supra, the obstruction of the highway was due solely to the unlawful acts of third persons.

We are of opinion that the offense created by St. 1907, c. 394, § 1, belongs to this class of offenses; and the entry must be

Exceptions overruled.