The defendant held a license of the first class and fourth class to sell intoxicating liquors at his hotel, which was the place he was indicted for keeping and maintaining as a common nuisance. The Commonwealth sought to establish its case by proving several sales of liquor to minors, made by the bar-keeper of the defendant, as well as by the defendant in person, at the hotel in question. While the jury were instructed that the defendant would not bo responsible for sales made by his bar-keeper if made without his knowledge, the defendant in no way participating therein, nor approving nor countenancing such sales, they were further instructed, “ that, nothing to the contrary appearing, evidence of a sale by a servant in his master’s shop of his master’s goods there kept for sale would, if believed, warrant the jury in finding that the sale was authorized by the master, and that this would be so although the defendant was not on the premises at the time the sale was made.” The *383instruction also submitted to the jury the whole question of the authority of the bar-keeper, under all the circumstances of the case, stating that there was no presumption of law either way. This left the weight of the evidence offered by the Commonwealth!, and the inferences to be drawn from it, entirely to the jpry, and is in accordance with the view expressed in Commonwealth v. Briant, 142 Mass. 463. It was as a question of fact solely that the jury were to determine whether an authorized sale by the bar-keeper had been proved, and the jury were permitted to make this inference, if, under all the circumstances, they should see fit to do so. In Commonwealth v. Hayes, 145 Mass. 289, it is also intimated that instructions précisely similar to those given in the case at bar would be unobjection able.
The instruction of the court, that there would seem to be no other way consistent with the defendant’s innocence by which the testimony of the witnesses could be explained, than upon the theory that they had committed perjury, was distinctly modified by the court, and the jury were then instructed that, if they could explain the testimony of these witnesses upon any other theory than that they had committed perjury, it was their duty to do so, and that this question was left to them. Whether the instruction as originally given was correct need not be considered, as the jury must have understood it to have been withdrawn, and the instruction subsequently given to have been substituted therefor. Commonwealth v. Clifford, 145 Mass. 97. As finally given, we see no objection to it; indeed, the instruction was, so far as it went, favorable to the defendant. The testimony of the witnesses had been direct as to the sales; the instruction made it the duty of the jury, if this testimony could be explained upon any other theory than that of perjury, thus to explain it for the benefit of the defendant.
The whole charge is not before us, but only such part as the defendant has selected for exception. It is not to be inferred that the court failed to instruct the jury that the defendant was to be presumed innocent, and that it was for the Commonwealth to prove his guilt beyond reasonable doubt. Still less is it to be inferred, that, because the jury were told that, if the direct evidence could be explained upon any other theory than that of *384perjury, it should be so explained, they were not also made fully to understand that, if the witnesses for the Commonwealth failed to command their confidence, or were in their opinion guilty of perjury, the defendant was entitled to an acqjhittal.
Exceptions overruled.
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