Commonwealth v. Dale

Morton, C. J.

The first two instructions requested by the defendant were properly refused. Upon the points raised by them the case of Commonwealth v. Dextra, 143 Mass. 28 , is decisive. It appeared in evidence that the shop in question was a shop for the sale of periodicals ; that the shop and the business thereof were owned by one Mrs. Ellor; and that the defendant was hired by Mrs. Ellor to take charge of the shop, and to manage the business thereof. The defendant asked the court to instruct the jury, that, unless they found “ that the defendant was the owner of the shop in question, they must return a verdict of not guilty.’’ The court rightly instructed the jury, that, if the defendant had charge and control of said shop, and carried on the business thereof, he might be convicted. In misdemeanors, all who knowingly and intentionally participate in the offence are principals, and may be convicted thereof, either jointly or severally. Thus, it has been held that a man who is not the owner of the house or tenement, or of the business conducted therein, but'manages it as the agent of -another, may be convicted of keeping a bawdy-house, or a liquor nuisance, or of maintaining a coal-yard which is a nuisance, or of keeping liquors with intent to sell. Commonwealth v. Kimball, 105 Mass. 465 , and cases cited. Commonwealth v. Dowling, 114 Mass. 259 . Commonwealth v. O'Reilly, 116 Mass. 15 .

In the case at bar, the jury have found that the defendant had the charge and control of the shop, and carried on the business thereof; this implies that he had the direction and management of it, and could and did decide when it should be opened and closed. If he kept it open on the Lord’s day, he aided and abetted in the commission of a misdemeanor, and may be convicted thereof.

*365 The defendant contends that this rule does not apply in this case, because the words of the statute, “ whoever on the Lord’s day keeps open his shop ” shall be punished, import that a man, to be subject to punishment, must be the owner of the shop. But this is not the necessary or natural construction. The ownership of the shop is immaterial. The offence is in keeping it open on the Lord’s day against the public peace. If a man has the government and management of a shop and of its business, it may properly be described as his shop, and, if he keeps it open on the Lord’s day, he makes an illegal use of it, and thus maintains, or aids in maintaining, a public nuisance.

.Exceptions overruled.