It will be observed that the requirement that the saloons and other places mentioned shall be closed is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offence.

It is contended, nevertheless, that to constitute an offence under the section referred to, there must be some evidence tending to show an intent on the part of the respondent to violate it; and People v. Parks, 49 Mich. 333, which was a prosecution under another section of the same statute, is cited as authority. It should be said of that case that the facts are not fully given in the report, and that there was positive evidence in the case to negative the intent in the respondent that the criminal act should be committed. But the case is plainly distinguishable from this. The section under which Parks was prosecuted makes not only the proprietor, but his clerks, agents, etc., individually liable for the conduct prohibited, and imposes upon them severally the duty to abstain from it. The section under which Roby is prosecuted makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon, etc., closed.

I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. Thus, in Massachusetts a person may be convicted of the crime of selling intoxicating liquor as a beverage, though he did not know it to be intoxicating, Commonwealth v. Boynton, 2 Allen, 160; and of the offence of selling adulterated milk, though he was ignorant of its being adulterated. Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Holbrook, 10 Allen, 200; Commonwealth v. Waite, 11 Allen, 264; Commonwealth v. Smith, 103 Mass. 444. See State v. Smith, 10 R. I. 258. In Missouri a magistrate may be liable to the penalty for performing the marriage ceremony for minors without consent of parents or guardians, though he may suppose them to be of the proper age. Beckham v. Nacke, 56 Mo. 546. Where the killing and sale of a calf under a specified age is prohibited, there may be a conviction though the party was ignorant of the animal's age. Commonwealth v. Raymond, 97 Mass. 567. See The King v. Dixon, 3 M. & S. 11. In State v. Steamboat Co., 13 Md. 181, a common carrier was held liable to a statutory penalty for transporting a slave on its steamboat, though the persons in charge of its business had no

knowledge of the fact. A case determined on the same principle is Queen v. Bishop, 5 Q. B. Div. 259. If one's business is the sale of liquors, a sale made by his agent in violation of law is prima facie by his authority, Commonwealth v. Nichols, 10 Met. 259; and in Illinois the principal is held liable, though the sale by his agent was in violation of instructions. Noecker v. People, 91 Ill. 494. In Connecticut it has been held no defence in a prosecution for selling intoxicating liquor to a common drunkard that the seller did not know him to be such. Barnes v. State, 19 Conn. 398. It was held in Faulks v. People, 39 Mich. 200, under a former statute, that one should not be convicted of the offence of selling liquors to a minor who had reason to believe and did believe he was of age; but I doubt if we ought so to hold under the statute of 1881, the purpose of which very plainly is, as I think, to compel every person who engages in the sale of intoxicating drinks to keep within the statute at his peril. There are many cases in which it has been held under similar statutes that it was no defence that the seller did not know or suppose the purchaser to be a minor; State v. Hartfiel, 24 Wis. 60; McCutcheon v. People, 69 Ill. 601; Farmer v. People, 77 Ill. 322; Ulrich v. Commonwealth, 6 Bush, 400; State v. Cain, 9 W. Va. 559; Commonwealth v. Emmons, 98 Mass. 6; Redmond v. State, 36 Ark. 58; and in Commonwealth v. Finnegan, 124 Mass. 324, the seller was held liable, though the minor had deceived him by falsely pretending he was sent for the liquor by another person. So a person has been held liable to a penalty for keeping naphtha for sale under an assumed name, without guilty knowledge; the statute not making such knowledge an ingredient of the offence. Commonwealth v. Wentworth, 118 Mass. 441. Other cases might be cited, and there is nothing anomalous in these. A person may be criminally liable for adultery with a woman he did not know to be married, Fox v. State, 3 Tex. App. 329; or for the carnal knowledge of a female under ten years of age though he believed her to be older. Queen ". Prince, L. R. 2 Cr. Cas. 154; State v. Newton, 44 Ia. 45. And other similar cases might be instanced.

If intent were necessary to be found I should be of opinion there was enough in the case to warrant its submission to the jury. The bar was opened on Sunday by respondent's servants and on his business while he was about the premises. The purpose for which it was opened was immaterial; the offence was committed by opening it for cleaning as much as it would have been by opening it for the sale of liquors. People v. Waldvogel, 49 Mich. 337. But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within the reach of temptation. This respondent did not keep his bar closed, and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent, it is immaterial

which, a sale of intoxicating liquors to a person who took advantage of the bar being open to enter it.

I think the Circuit Court should proceed to judgment.
SHERWOOD and CHAMPLIN, JJ., concurred.1

CAMPBELL, J. In this case the charge of the judge was properly guarded as to the necessity of showing complicity of respondent in the act charged against him, and as to the presumption of his innocence. But in my opinion the rules he laid down were inconsistent with the sufficiency of the facts to sustain a conviction. I think this conviction can only be maintained on the principle that an agent appointed for a confessedly legal purpose is presumed to be authorized to act illegally. I can see no reason why such presumption should be lawful in one case and not in another. In all crimes the presumption of innocence must be the same. The charge here is distinctly criminal, and while the offence is one of importance to the public order, I think that the decisions which set up exceptional rules of evidence to prove it are of dangerous tendency and would not be safe precedents.

COMMONWEALTH v. BRIANT.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[142 Mass. 463.]

1886.

HOLMES, J. This is a complaint for unlawfully selling intoxicating liquors to a minor. The court assumed that the case was governed by Commonwealth v. Wachendorf, 141 Mass. 270; and instructed the jury that a sale by the defendant's bar-tender might be explained by showing that it was not authorized by the master, or was done in violation of his orders and against his will.

66

On the question of authority, the defendant asked for a ruling that agency for any other purpose will not warrant a presumption or inference of agency illegally to sell liquor." The court refused the ruling; and instructed the jury, in substance, that a sale of intoxicating liquors by a bar-tender in his master's shop, and in the regular course of his master's lawful business, is prima facie a sale by the master, although the sale is an illegal sale, but that such a sale may be explained by showing that it was not authorized. Even if the ruling requested was wrong, we think the instruction given went too far in an opposite direction. For, although we should admit that a jury might be warranted in inferring that such a sale was authorized, it would not follow that a court could rule that there is a presumption of fact that it was so, which is the purport of the instruction fairly construed. The

1 Acc.: The State v. Kittelle, 110 N. Car. 560 (1892). — ED.

proposition that there is evidence for the jury to consider, is not identical with the proposition that the evidence, if believed, raises a presumption of fact. The proposition that there is evidence to be considered imports that there may be a presumption of fact. But generally it must be left to the jury to say whether there is one, and in many cases that is the main question which they have to decide.

The facts that a man employs a servant to conduct a business expressly authorized by statute, and that the servant makes the unlawful sale in the course of it, do not necessarily overcome the presumption of innocence merely because the business is liquor selling, and may be carried beyond the statutory limits. See Commonwealth v. Putnam, 4 Gray, 16; Commonwealth v. Dunbar, 9 Gray, 298.

It is true that a master would be liable civilly for such a sale as supposed in the instruction, but his civil liability exists even when he prohibited the sale, and therefore it does not stand upon a presumption that he authorized the sale, but upon the general ground for a master's liability for the unauthorized torts of his servants, whatever that may be. George v. Gobey, 128 Mass. 289; Roberge v. Burnham, 124 Mass. 277; Pub. Sts. c. 100, § 24. See Byington v. Simpson, 134 Mass. 169, 170.

Commonwealth v. Holmes, 119 Mass. 195, cited for the prosecution, went no farther than to decide that evidence that the defendant's son and clerk sold intoxicating liquors in a public house kept by the defendant was evidence of a sale by the defendant, sufficient to be submitted to a jury. See also Commonwealth v. Edds, 14 Gray, 406. Nothing was said as to a presumption of fact. The evidence, too, was stronger than in the case at bar; for there the defendant set up no license, any sale was unlawful, and the question was whether the defendant gave authority to his clerk to sell at all. It might well be thought that the clerk would hardly undertake to sell in the way of business in his employer's house without some authority. But it is obviously much more likely that a servant employed to make lawful sales should occasionally go beyond his authority, which he might do by mistaking a minor for an adult, than that he should go into a wholly unauthorized business.

Commonwealth v. Nichols, 10 Met. 259, probably suggested the ruling of the court, and is perhaps a little nearer the case at bar than Commonwealth v. Holmes, as the defendant seems to have sold liquors at wholesale, and to have employed his clerk in that business, although not licensed to sell at retail. The court, in sustaining the defendant's exceptions, said that a sale at retail by the clerk was "only prima facie evidence" of a sale by the master. It hardly said, and could not have decided, that such a sale was prima facie a sale by the master, or that it raised a presumption of fact. Moreover, if it were held that there was such a presumption of fact in cases like Commonwealth v. Holmes and Commonwealth v. Nichols, it would not follow that there was the same presumption in the present case, still less that

It was so plain that the jury could be instructed to act on it. Such presumptions are questions of fact and of degree.

J. R. Thayer, for the defendant.

Exceptions sustained.1

E. J. Sherman, Attorney-General, for the Commonwealth.

SECTION VI.

Admissions.

FAIRLIE v. HASTINGS.

CHANCERY. 1803.

[10 Ves. Jr. 123.]

THE MASTER OF THE ROLLS. The subject of this cause is a loan of money by the late plaintiff Maha Rajah Nobkissen to the defendant. As it is not by bill in equity that money lent is to be recovered, it is incumbent upon the plaintiff to state, and to prove, some ground for coming into this court for the payment, or the means of obtaining payment of his demand. The question of jurisdiction must depend upon the allegations of the bill; which states, that the defendant applied to the plaintiff for the loan of three lacks of rupees upon the security of the defendant's bond; that the plaintiff agreed to advance that sum by instalments; that a bond was executed, which it was agreed should remain with Caunto Baboo, an agent of the defendant, until the whole money should be advanced, and then should be delivered to the plaintiff; that the money was advanced, but the plaintiff never received the bond; Caunto Baboo in answer to his repeated applications at length informing him, that it had been delivered up to the defendant.

...

1 "The evidence was, that a lottery office was kept in a house rented by Gillespie, under a sign in the name of Gillespie's lottery office; that Gregory, a young lad, acted as his servant or agent in that office, and sold the ticket . . . indorsed in the name of Gillespie; . . . that Gillespie occasionally visited Philadelphia. I did not instruct the jury, that Gillespie was criminally answerable for the act of his agent or servant, but I left them to decide, whether, from the whole body of the evidence, Gillespie was concerned in the sale of this ticket. The house his; the boy conducting business for him as a lottery broker, under his sign; selling this very ticket as his agent, and in his name. These were circumstances, from which the jury might infer his participation in the sale of this ticket; more especially as, if the boy had been employed as his agent to sell tickets authorized by the laws of this State, and not tickets prohibited, a production of his books would establish his innocence. That criminality, even in acts of the blackest dye, might be made out by circumstantial evidence." Per DUNCAN, J., in Commonwealth r. Gillespie, 7 S. & R. 469, 477 (1822). — Ed.

2 Sir WILLIAM GRANT. The reporter's statement is omitted. The bill prayed that the bond might be delivered up, or the money be paid with interest.-ED.