Commonwealth v. Park

Metcalf, J. The question in these two cases, though somewhat differently presented, is in substance and effect the same, namely, whether an indictment or complaint, which alleges that A. sold spirituous or intoxicating liquor, without any legal authority, contrary to St. 1853, c. 322, § 7, is supported by proof that he sold it by his clerk, servant or agent. It was decided, in Commonwealth v. Nichols, 10 Met. 259, that a party might be convicted, under the Rev. Sts. c. 47, on an indictment for the unlawful sale of spirituous liquor by a servant or agent employed in his business. The question, however, whether the indictment, in such case, should allege that the sale was by him through his servant’s agency, (as, in the present case, it is contended that it should,) was not there raised nor discussed. But it is a general rule, in civil actions and in prosecutions for misdemeanors, that when a declaration or indictment alleges that a person did an act, such allegation is sustained by proof that he caused it to be done by another. 3 Stark. Ev. (4th Amer. ed.) 1582. Thus, in an action to recover damages alleged to have been caused by the defendant’s 555 negligence in driving a carriage, proof that the damage was caused by his servant’s negligence in driving it supports the allegation. Brucker v. Fromont, 6 T. R. 659. See also Heys v. Heseltine, 2 Campb. 604; Phelps v. Riley, 3 Conn. 266. So an indictment, which charges the defendant with publishing a libel, is supported by evidence that he procured another person to publish it. Archb. Crim. Pl. (5th Amer. ed.) 527, 528. Rex v. Gutch, Mood. & Malk. 437. And an indictment, which charges the defendant with selling lottery tickets, contrary to law, is supported by proof that he sold them by his servant. Commonwealth v. Gillespie, 7 S. & R. 469, 478. Exceptions overruled.