
    Commonwealth vs. Mary E. Woods.
    Suffolk.
    November 25, 1895.
    —January 3, 1896.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Intoxicating Liquor — Law and Fact—Variance.
    
    If, at the trial of a complaint for a single illegal sale of intoxicating liquor to A., the jury find that it was made to A., it is immaterial whether it was made to him as principal, or as agent of B.
    Complaint, alleging a single illegal sale of intoxicating liquors in Boston, to one Thomas M. Keenan, on February 17, 1895. Trial in the Superior Court, before Sherman, J., who allowed a bill of exceptions, in substance as follows.
    Keenan testified that he with one Mrs. Cantwell, who was employed to aid in obtaining evidence against violators of the liquor law, went to 83 Green Street, and in answer to the ringing of the door bell one Monroe appeared; that he asked for a room, and on their being shown to it paid Monroe a dollar, and then asked for some whiskey; that soon the defendant appeared and asked, “ What will you have?” and Mrs. Cantwell said, “ Whiskey ” ; and that the defendant went away and soon after appeared with two glasses of whiskey and a glass of water, and Mrs. Cantwell asked the price, and the defendant replied, “ Twenty cents,” which sum Keenan paid.
    Mrs Cantwell testified that she was employed for pay, to obtain illegal sales of intoxicating liquors from parties suspected by her of making such sales in Boston, for the purpose of prosecuting them; that in pursuance of her employment, on said February 17, she took Keenan to the house on Green Street; that she knew that Keenan was then a police officer of the city of Boston, with authority to arrest for an illegal sale, if made ; that while they were occupying the room, the defendant said to her, “What will you have?” that she replied, “ Bring two whiskeys ”; that the defendant soon returned bringing two glasses of whiskey; that she asked the defendant the price, to which the defendant replied, “ Twenty cents ” ; that she drank a portion of the whiskey, and Keenan tasted of one glass of it; that Keenan took from his pocket two ten-cent pieces and handed them to the defendant, which she took and carried away; that Keenan did not speak to the defendant, and took no part in the sale except to hand the price of the same to the defendant, and that when the whiskey was ordered, Keenan was not at the door of the room, but was sitting on a bed in the room, some distance from her and from the defendant, who was then at the door.
    The defendant requested the judge to instruct the jury to return a verdict of not guilty, on the ground of a variance, said sale being in law a sale to Cantwell, and not to Keenan, as charged in the complaint.
    The judge refused so to rule, and instructed the jury that, under the evidence, it was a question of fact for the jury to determine to whom the sale was made, whether to Keenan or to Cantwell.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      C. B. Loud, for the defendant.
    
      J. D. McLaughlin, Second Assistant District Attorney, for the Commonwealth.
   Lathrop, J.

It was for the jury to say to whom the sale alleged in the complaint was made. If it was made to Keenan, it made no difference whether it was made to him as principal, or as agent of Cantwell. Commonwealth v. Gormley, 133 Mass. 580. Commonwealth v. Gould, 158 Mass. 499.

Exceptions overruled.  