The jury may fairly have understood that they were instructed to convict the defendant Godfrey, although they *251should 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.