Commonwealth v. Galligan

Field, J. The law, that, in misdemeanors, all who aid or assist others in committing the offence are principals, and equally guilty with those who actually commit it, has been applied with some limitations to the statutory offence charged in this indictment. In the cases where, in the opinions, this general rule of law has been declared, the evidence showed that the defendant either was the proprietor or for a longer or shorter time had had charge and control of the place alleged to have been kept and maintained as a common nuisance. Commonwealth v. Kimball, 105 Mass. 465. Commonwealth v. Dowling, 114 Mass. 259. Commonwealth v. Burke, 114 Mass. 261. 174 In Commonwealth v. Churchill, 136 Mass. 148, it was decided that, if the defendant was a servant of the proprietor, he could not be convicted on evidence that, in the tenement described in the indictment, he unlawfully sold intoxicating liquor in the presence, or under the actual personal supervision, of his employer. It may not be necessary, in order to convict a defendant who is an agent of the proprietor, that he should have had the sole charge and control of the tenement, but the instruction given was, that, if one of the defendants was the sole proprietor, and the other was present, aiding and abetting him “ in acts of proprietorship and control, both might be found guilty.” We think that this instruction was too indefinite, and may have misled the jury; and, for this reason, the exceptions are sustained. The defendants could be jointly found guilty only by proof that they jointly kept or maintained the nuisance charged. If one was sole proprietor, and the other only kept or maintained the nuisance as his servant, under his direct personal supervision, the latter could not be convicted. If, however, the servant, in carrying on the business of his employer, and in the absence of his employer, was authorized by him to make illegal sales of intoxicating liquor, and made such sales, both could be found guilty of maintaining the nuisance. From the cross-examination of the witness Pushaw, it appears that he had no personal knowledge that Edward H. Galligan was the proprietor of the saloon, and no knowledge of any fact that was competent evidence, except the conversation with Edward, the purport of which does not appear. If Edward, in that conversation, admitted that he was the proprietor, this admission was competent evidence against him. The jury should have been told that the testimony of Pushaw must be disregarded, except that part of it which contained the conversation with Edward. Whether that conversation was admissible against Edward we cannot determine, because we do not know what it was. Exceptions sustained.