
    Commonwealth vs. Stephen Daly.
    Suffolk.
    January 4, 1889.
    January 5, 1889.
    Present: Morton, C. J., Field, Devens, W. Allen, C. Allen, & Knowlton, JJ.
    
      Intoxicating Liquors — Sale by Mistake.
    
    It is no defence to a complaint for unlawfully selling intoxicating 'liquors, that the defendant supposed the liquor sold by him, which was in fact intoxicating, to be a non-intoxicating beverage.
    Complaint for an unlawful sale of intoxicating liquor, on July 17, 1888, to one Latter. At the trial in the Superior Court, on appeal, before Sherman, J., the defendant conceded that he made the sale to Latter, and the liquor sold was lager beer, but offered evidence tending to prove that the bottle from which the liquid was taken and sold to Latter was stamped “ tonic beer ”; that he intended to sell “ tonic beer,” and not lager beer; that a bottle containing lager beer had been put into the ice-chest under his bar, where he kept the “ tonic beer,” by one of his servants, without his knowledge, and that he sold it by mistake.
    The counsel for the defendant, in his argument to the jury, said that, if the defendant intended to sell non-intoxicating beer, but in fact sold lager beer, and did not know he was selling intoxicating liquor, the judge would tell them that they must acquit the defendant. The judge interrupted the counsel, and said, “ I shall have to instruct them otherwise: that if the defendant intended to sell beer, and in fact did sell beer, which was intoxicating, it would be no excuse that he did not know it was intoxicating liquor.” The counsel replied, that, if that was to be the ruling, he would not argue the case, but would except to such ruling.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      J. F. Cronan, for the defendant.
    
      A. J. Waterman, Attorney General, & H. C. Wyman, Second Assistant Attorney General, for the Commonwealth.
   By the Court.

The complaint charges the sale of intoxicating liquor to one Latter. The defendant admitted that he sold lager beer to said Latter, and offered to show, as a defence, that he intended to sell, and supposed he was selling, “ tonic beer,” and not lager beer. It has been repeatedly held, that, if a man sells or keeps for sale intoxicating liquor, it is no. defence that he does not know it to be intoxicating, or that he supposed it to be something else. Commonwealth v. Savery, 145 Mass. 212, and cases cited. The ruling at the trial was in accordance with these cases, and was correct. Exceptions overruled.  