
    Commonwealth vs. Mary Flaherty.
    Norfolk.
    Nov. 23, 1885.
    Jan. 7, 1886.
    Devens & Gardner, JJ., absent.
    At the trial of a complaint against a married woman, for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquors, the evidence showed three sales, two in the presence of the defendant's husband, and a third when he was in the yard outside the kitchen where the sale was made. As to this last sale, the jury were instructed that “no presumption arises that sales made by the wife, when the husband is on the estate, or on the premises, not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made.” Held, that the defendant had good ground of exception.
   Holmes, J.

The complaint alleged the keeping of a common nuisance, namely, a tenement used for the illegal sale and illegal keeping of intoxicating liquors. The evidence was of three sales, two in the presence of the defendant’s husband, and a third when he was in the yard outside the kitchen where the sale was made. As to this last sale, the jury were instructed that “ no presumption arises that sales made by the wife, when the husband is on the estate, or on the premises, not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made.” We think that the jury must have understood this language as meaning that, if, at the moment of the sale, the husband was not immediately and visibly in presence of the wife, she would be liable for it, as matter of law, although he was on the premises. We also think, although perhaps this is less important, that the word “ liable ” must be taken to mean liable on this complaint, which was the point on which the jury were to be instructed, as otherwise there would seem to have been a mistrial.

Thus construed, the instructions went too far, and justice to the defendant requires that she should have a new trial, even if the actual meaning of the judge was correct. It is true that, if the wife acts in the absence of her husband, there is no presumption that she acts under his coercion. But if the husband is near enough for the wife to act under his immediate influence and control, though not in the same room, he is not absent, within the meaning of the law. Commonwealth v. Buck, 11 Gray, 437, 438. This principle was restated and applied in a case where, if it appeared at all where the husband was, he was in the barn while the sales were made in the house. Commonwealth v. Munsey, 112 Mass. 287. That case was, if anything, stronger than the present. For there the wife was complained of as a common seller, whereas in the present case (for keeping a nuisance) the sales do not constitute the offence, but are only evidence of it, (Commonwealth v. Patterson, 138 Mass. 498,) and as the husband “was a cripple, generally at home, except that he could hop out,” it is conceivable that his wife might be so far free from his influence as to be answerable for the sale, and yet not so independent as to be deemed to have acquired control of the place. See Commonwealth v. Churchill, 136 Mass. 148, 151. The ruling sustained in Commonwealth v. Roberts, 132 Mass. 267, concerned unlawful sales made by a woman while her husband was at sea, and while, therefore, his absence could not be disputed.

J. L. Eldridge, for the defendant.

E. J. Sherman, Attorney General, and II. N. Shepard, Assistant Attorney General, for the Commonwealth.

Exceptions sustained.  