
    Commonwealth vs. Rosanna Hagan & another.
    Plymouth.
    October 21, 1890.
    January 6, 1891.
    Present: Field, C. J., Devens, W. Allen, C. Allen, Holmes, Knowlton, & Morton, JJ.
    
      Intoxicating Liquors — Common Nuisance — Agency.
    
    Upon the trial of a complaint under the Pub. Sts. c. 101, §§ 6,7, for keeping a common nuisance, evidence that in the defendants’ absence a single sale of liquor was made on Sunday by a young woman, not shown to have been employed by them in their business, who was then washing the floor of the premises, is insufficient to warrant a conviction.
    Indictment against Rosanna Hagan and Edward Hagan for keeping and maintaining a common nuisance, to wit, a tenement in Bridgewater used for the illegal sale and keeping of intoxicating liquors from July 1, 1889, to June 11, 1890. At the trial in the Superior Court, before Barker, J., the jury returned a verdict of guilty; and the defendants alleged exceptions. The facts, so far as material to the single point decided, appear in the opinion.
    The case was submitted on briefs to all the judges.
    
      B. 0. Karris, for the defendants.
    
      A. J. Waterman, Attorney General, f K. A. Wyman, Second Assistant Attorney General, for the Commonwealth.
   C. Allen, J.

So far as appears, there was no evidence of any illegal sale of liquor upon the premises except in one instance, when a sale was made on a Sunday, in the absence of the defendants, by a young woman who was washing the floor. The court apparently allowed the jury to find the defendants guilty of keeping and maintaining a nuisance upon the evidence of this single sale. There was nothing to show that the woman was employed by the defendants in their business. There was no presumption that her act of selling liquor illegally on Sunday was sanctioned by them. We think the jury should have been instructed that this evidence was not sufficient to warrant a conviction of maintaining a nuisance. Commonwealth v. Hayes, 150 Mass. 506. Commonwealth v. Patterson, 138 Mass. 498.

Exceptions sustained.  