Commonwealth v. Radocchia

Sheldon, J.

In the opinion of the majority of the court the instructions to the jury cannot be sustained. The provision of the statute is that “ no person or corporation, except a railroad or street railway corporation, shall, for hire or reward, transport spirituous or intoxicating liquors into or in a city or town in which licenses of the first five classes for the sale of intoxicating liquors are not granted, without first being granted a permit so to do as hereinafter provided.” This plainly means hire or reward to be given to the carrier for the carriage.

If the seller himself delivers the goods, he may be convicted under the statute if he receives such hire or reward for the carriage. If he agrees to deliver the goods free of charge for the carriage, it doubtless will be a question for the jury whether this is actually done, or whether he really receives a hire or reward for the carriage by its being included in the price charged for the liquors themselves; but there is nothing in this statute which forbids him from delivering to his customers in another town the goods which he has sold to them, if he really in good faith does this without receiving, either directly or indirectly in the price of the goods, any hire or reward for the carriage. It will always be for the jury, even though the price charged for the liquors is not made different for different distances, to say whether that price does not really include a charge for delivery, based perhaps upon what is expected to be the average cost of all the deliveries that will be made.

Whatever the seller may do himself he may do through his hired servant. In such a case the wages paid to that servant for all the services to be rendered by the latter cannot be said to be a hire or reward for the carriage of liquors, merely because those services may incidentally include the duty of carrying the liquors and delivering them to the purchasers thereof. We need not consider how this would be if it appeared that the servant was hired and paid exclusively or even principally for the purpose of making such deliveries. See Commonwealth v. Intoxicating Liquors, 172 Mass. 311, 315, 316.

It is to be presumed, as has been suggested by the district attorney, that full instructions were given to the jury on all other points; but that cannot cure the error in the instruction that was given.

Exceptions sustained.