Commonwealth v. Bezko

| Mass. | Oct 25, 1932

Crosby, J.

The defendant was tried on two complaints, one for keeping intoxicating liquors with intent to sell contrary to law, the other for maintaining a liquor nuisance. There was evidence that the defendant with his family lived on a small farm in Hatfield, and raised tobacco and onions. When the police officers searched the defendant’s house and barn by virtue of a search warrant neither the defendant nor his family was on the premises. In the cellar of the house the officers seized a case of quart bottles of beer and another bottle half filled. The beer was shown by analysis to contain three and twenty-nine hundredths per cent of alcohol. The officers also found in the cellar a still full of alcohol mash which was hot and contained two and twenty-five hundredths per cent of alcohol. A bottle copper and alcohol tester were found on the stairs, and in a cupboard in the kitchen there were many corks and caps. In a partition in the barn a gallon of liquor containing twenty-nine and twenty-six hundredths per cent of alcohol was discovered.

1. One of the officers testified that he remained on the premises until 5:30 o’clock the next morning and during that time two motor vehicles were driven into the yard; that one of them came there on three occasions and was operated by one Mikaliewicz. One of the officers who participated in the raid was called as a witness by the Commonwealth and asked in substance if he knew Mikaliewicz’s general reputation in the community “for compliance with the liquor laws or anything in regard to his reputation for liquor traffic?” The answer was in the affirmative.- The witness was then permitted to testify, subject to the defendant’s exception, that Mikaliewicz handled liquor and transported it, and that that was his general reputation. We are of opinion that this evidence was admissible. Since the adoption of the Eighteenth Amendment to the Federal Constitution and the act of Congress known as the Volstead act it is common knowledge that intoxicating liquor is sold unlawfully and at times delivered to the buyer by men who are known as “bootleggers.” If this evidence were believed, the jury could have found that Mikaliewicz was illegally engaged in handling and transporting intoxicating liquor. This evidence and the other evidence adduced had a tendency to show that the defendant was guilty of the charges set forth in the complaints.

The statement in the opinion in Warner v. Brooks, 14 Gray, 107, at page 108, that “The occupation of the defendant could not be proved to be that of selling intoxicating liquors, by evidence that he was reputed to deal in them” is not pertinent to the facts in the present case. The action there was brought to recover on a promissory note. One of the defences set up in the answer was that the consideration for the note was intoxicating liquors, and that the plaintiff knew such to be the fact. This court said: “But that was not the purpose for which the evidence was offered, as the bill of exceptions states. It was offered, not upon any question of notice or knowledge, but as direct evidence of the fact of which such reputation existed, and was rightly rejected.” The soundness of the decision in that case cannot be doubted, but it is not relevant to the facts here, where the defendant is charged with criminal offences, to prove which it may be reasonably inferred that if Mikaliewicz had a general reputation in the community for handling and transporting intoxicating liquor the defendant was guilty of the crimes charged. If the jury found that a man who illegally sells and transports liquor makes three visits in one night to the house of one charged with illegally keeping intoxicating liquor for sale, it may rationally be inferred that he went there either for delivery of liquor for sales to the defendant’s customers, or for the purpose of purchasing liquor from the defendant, especially in view of the fact that a still on the defendant’s premises was full of mash which was hot and steaming.

2. The testimony of the police officer that he saw drinking men going in and out of the defendant’s house during the period set forth in the complaint charging, a common nuisance was admitted subject to the defendant’s exception. This witness testified that he knew the habits of these men for sobriety. The exception to the admission of this testimony must be overruled. If the jury found that the defendant’s house was resorted to by drinking men that fact would be evidence tending to show it was a place where intoxicating liquor could be purchased. Commonwealth v. Helfman, 258 Mass. 410" court="Mass." date_filed="1927-02-28" href="https://app.midpage.ai/document/commonwealth-v-helfman-6437871?utm_source=webapp" opinion_id="6437871">258 Mass. 410, 415. Commonwealth v. Fomuck, 261 Mass. 292" court="Mass." date_filed="1927-11-22" href="https://app.midpage.ai/document/commonwealth-v-fomuck-6438233?utm_source=webapp" opinion_id="6438233">261 Mass. 292, 293.

3. There was evidence that liquor was hidden under a partition in the barn. It was for the jury to determine whether or not the liquor was so concealed with the intent to sell it. The instructions to the jury with reference to this evidence were correct. Commonwealth v. D’Amico, 254 Mass. 512" court="Mass." date_filed="1926-02-03" href="https://app.midpage.ai/document/commonwealth-v-damico-6437383?utm_source=webapp" opinion_id="6437383">254 Mass. 512, 515. Commonwealth v. Helfman, 258 Mass. 410" court="Mass." date_filed="1927-02-28" href="https://app.midpage.ai/document/commonwealth-v-helfman-6437871?utm_source=webapp" opinion_id="6437871">258 Mass. 410, 415.

4. It is obvious from the evidence respecting the presence in the house of the bottle caps, capping machine, alcohol tester, the still, and the liquor hidden in the barn and the other evidence, that the motions for directed verdicts for the defendant were rightly denied. Commonwealth v. Kozlowsky, 243 Mass. 538" court="Mass." date_filed="1923-01-09" href="https://app.midpage.ai/document/commonwealth-v-kozlowsky-6436063?utm_source=webapp" opinion_id="6436063">243 Mass. 538. Commonwealth v. Zaidon, 253 Mass. 600" court="Mass." date_filed="1925-11-23" href="https://app.midpage.ai/document/commonwealth-v-zaidon-6437245?utm_source=webapp" opinion_id="6437245">253 Mass. 600. The defendant’s exceptions to the admission of evidence for the reasons already stated show no error.

Exceptions overruled.