
    Commonwealth vs. Michael J. Murphy & another.
    Essex.
    November 1.—22,1887.
    Devens & Kjstowlton, JJ., absent.
    At the trial of a complaint against A. and B. for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, evidence was introduced showing that both defendants had been seen in and about the premises in question. The defendants contended that one defendant was in the employ of the other; and asked the judge to rule that, “ if B. was employed by A. as an assistant, on wages, and did not act in the absence of A., nor at any time have sole charge of the premises, he cannot be convicted.” The judge declined so to rule; but instructed the jury that, if B. assisted A. in keeping and maintaining the premises as a nuisance, he would be liable to conviction upon the complaint. Held, that B. had good ground of exception.
    Complaint to the Police Court of Gloucester, against Michael J. Murphy and David C. Godfrey, for keeping and maintaining a common nuisance, to wit, a certain tenement in Gloucester, used for the illegal sale and illegal keeping of intoxicating liquors, on October 1, 1885, and on divers other days and times between that day and March 26, 1886.
    At the trial in the Superior Court, on appeal, before Hammond, J., evidence was introduced showing that both defendants had been seen in and about the premises in question. The defendants contended that one defendant was in the employ of the other; and requested the following ruling: “ If Godfrey was employed by Murphy as an assistant, on wages, and did not act in the absence of Murphy, nor at any time have sole charge of the premises, he cannot be convicted.”
    The judge declined to give the instruction requested; but instructed the jury that, if the defendant Godfrey assisted Murphy in keeping and maintaining the premises as a nuisance, he would be liable to conviction upon this complaint.
    The jury returned a verdict of guilty against each defendant; and they alleged exceptions.
    
      H. P. Moulton, for the defendants.
    
      H. 0. Bliss, Assistant Attorney General, for the Commonwealth.
   Holmes, J.

The jury may fairly have understood that they were instructed to convict the defendant Godfrey, although they should find that Murphy was the sole proprietor, and that Godfrey’s assistance was only that of a servant, rendered in Murphy’s presence, and without exercising any kind of control over the premises. The case therefore falls within Commonwealth v. Galligan, 144 Mass. 171, which was decided after the ruling excepted to. See also Commonwealth v. Churchill, 136 Mass. 148, 151. This is the only exception argued, and is admitted not to affect the defendant Murphy.

Exceptions of Q-odfrey sustained.

Exceptions of Murphy overruled.  