Commonwealth v. Certain Intoxicating Liquors

115 Mass. 142 | Mass. | 1874

Gray, C. J.

A proceeding under the St. of 1869, c. 415, for the forfeiture of intoxicating liquors illegally kept and intended for sale, is of a criminal nature. The statute requires that both in the complaint on oath by which the proceeding is commenced, and in the search warrant issued thereon, the place to be searched, the liquors to be seized, and the person by whom they are owned or kept and intended for sale, shall be particularly designated, and “ the offence fully, plainly and substantially described.” §§ 44, 46. Commonwealth v. Intoxicating Liquors, 13 Allen, 52. Notice is to issue to the person complained against as the keeper of the liquors seized, and to all other persons claiming any interest therein, to appear and answer the complaint and show cause why the liquors should not be forfeited; and “ time and opportunity for trial and defence shall be given to persons interested.” §§ 48, 49, 50. If the person complained against, or any other person claiming an interest in the liquors appears, “he shall be admitted as a party on the trial; ” and whether there is any such appearance or not, the liquors are to be adjudged forfeited only upon satisfactory proof that they were owned or kept by the person alleged in the complaint, for the purpose of being sold in violation of law. § 51. Commonwealth v. Intoxicating Liquors, 113 Mass. . If no person appears as a claimant, or judgment is rendered in favor of all who so appear, “ the cost of the proceedings shall be paid as in other criminal cases; ” if any person appearing fails to sustain his claim, judgment is to be rendered and execution issued against him for costs, and, in case of non-payment thereof, he is to be committed to jail, and not discharged until he has paid the same and the costs of commitment, or been imprisoned thirty days. § 54. From the judgment of a justice of the peace or police court, the person complained against, as well as any claimant whose claim is not allowed, has “ the same right of appeal, and to the same court, as if he had been convicted of a crime,” first entering into a recognizance to the Commonwealth to prosecute his appeal and “ to abide the sentence ” of the court appealed to. § 55. Commonwealth v. Intoxicating Liquors, 13 Allen, 561.

It is upon the ground that these proceedings are in the nature of a criminal prosecution, that they have been held by this court not to be within the statute making the Commonwealth liable to costs “ in civil suits and proceedings; ” Commonwealth v. Intoxicating Liquors, 14 Gray, 375; and to be within the statute which allows the Commonwealth a right to peremptorily challenge jurors “in all criminal cases.” Commonwealth v. Intoxicating Liquors, 107 Mass. 216.

The distinction between proceedings of this character, prosecuted exclusively on behalf of the Commonwealth, and those commenced in the name of an individual and carried on for his own benefit, as in Barnacoat v. Gunpowder, 1 Met. 225, and under the Gen. Sts. c. 153, was pointed out in Commonwealth v. Intoxicating Liquors, 14 Gray, 375, and in Attorney General v. Justices of Municipal Court, 103 Mass. 456, 467.

It was therefore rightly said in Commonwealth v. Intoxicating liquors, 105 Mass. 595, that “ the intent to sell contrary to law, in which the whole criminality of the keeping consists, must be proved beyond reasonable doubt, according to the ordinary rule of criminal cases, before a decree of forfeiture can be had.” The jury in the present case having been instructed otherwise, the Claimant's exceptions must be sustained.