122 Mass. 8 | Mass. | 1877
1. The motion to quash was properly overruled. The premises to be searched are sufficiently described, and it is clearly alleged that Ganey kept the liquors described with intent to sell them contrary to law. The jurat imports that the complaint was sworn to by both the complainants.
2. The first two requests for instructions were properly refused. The complaint and warrant does not describe the place
3. The claimant requested the court to instruct the jury “ that the burden of proving that the claimant, John Ganey, acted without license, appointment or authority is upon the government, and that the government is bound to prove that the claimant acted without license, appointment and authority.” The court refused to give this instruction. It may be that the technical burden of proof is upon the government to show that the claimant had no license, appointment or authority; but if the St. of 1864, c. 121, applies to this case, the instruction requested could not have been given without misleading the jury, because the last clause imports that the government could not rely upon the presumption created by the statute, but must prove by affirmative evidence the want of a license, appointment or authority.
The statute provides that, “in all criminal prosecutions in which the defendant relies for his" justification upon any license, appointment or authority, he shall prove the same; and, until such proof, the presumption shall be that he is not so authorized.” St. 1864, c. 121, § 1. A proceeding under the St. of 1876, c. 162, for the forfeiture of intoxicating liquors illegally kept and intended for sale is a criminal prosecution. Commonwealth v. Intoxicating Liquors, 115 Mass. 142. The only question is, whether the claimant who becomes a party in such proceeding is a defendant within the meaning of the St. of 1864.
By the St. of 1876, c. 162, §§ 1-3, the person by whom the liquors to be seized are owned, kept or possessed is to be named in the complaint; and, .by § 5, written notice is to be issued, “ commanding the person complained against as the keeper of the liquor seized, and all other persons claiming any interest therein,” to appear “ to answer to said complaint; ” and, by § 7, “ time and opportunity for trial and defence shall be given to persons interested.” By § 8, “ the person complained against,” or any person interested, “may appear and make his claim,” “and he
It appears from these provisions, and from the whole scope of the statute, that the claimant, who appears, becomes a party, as defendant, in the prosecution. He is a party who is to answer the charges in the complaint, and defend himself and his property against such charges. He has the same rights as to the rules of evidence and mode of trial, and of appeal, as other defendants in criminal cases.
We are of opinion that he is a defendant in a criminal prosecution, within the fair interpretation of the St. of 1864, and therefore that, if he relies for his justification upon any license, appointment or authority, he must prove the same, or the presumption will be that he is not so authorized.
Exceptions overruled.
A similar decision was made in Suffolk, January 3, 1877, in the case of Commonwealth vs. Certain Intoxicating Liquors, Michael Sullivan, claimant, in which the only exception insisted upon was to the ruling “ that it was for the claimant to prove his license, if he had any, and that, as he had not produced it, the presumption was that he was not authorized to sell the liquors.”
The Court Overruled the exceptions.
C. F. Donnelly, for the claimant.
W. C. Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.
