Commonwealth v. Certain Intoxicating Liquors

| Mass. | Oct 21, 1886

Morton, C. J.

In the body of the complaint, Freewaldau C. Thayer and Amos Atkinson are named as complainants. The complaint is signed “ F. C. Thayer, Amos Atkinson, complainants.” The form of the signature and the official certificate of the clerk of the court clearly show that F. C. Thayer was one of the complainants, and identifies the F. C. Thayer who signed and swore to the complaint as the same person described as Freewaldau C. Thayer in the complaint. Commonwealth v. Quin, 5 Gray, 478. Commonwealth v. Wallace, 14 Gray, 382. ISTo other insufficiency in the complaint was suggested at the argument, and the motion to quash was rightly overruled.

The statute provides that no warrant shall be issued for the search of a dwelling-house, unless one of the complainants makes oath or affirmation that he has reason to believe, and does believe, that intoxicating liquor has been sold therein, or taken therefrom for the purpose of being sold contrary to law, by the occupant, within one month next before making such complaint, and is then kept therein for sale contrary to law by the person complained against. Pub. Sts. c. 100, §' 31. In this case, the warrant was issued for the search of a dwelling-house, and one of the complainants duly made the oath required by the statute. At the trial, the claimant asked the court to rule that “the Commonwealth must prove affirmatively that liquors were sold from the dwelling-house described within one month prior to July 6, in order to warrant the confiscation of the liquors there found.” The court rightly refused this ruling.

The statute provides, that, “ if it appears that the liquor, or any part thereof, was at the time of making the complaint owned or kept by the” person alleged therein, for the purpose of being sold in violation of law,” the court shall render a judgment of forfeiture. Pub. Sts. c. 100, § 37. The fact that liquor has been sold in the dwelling-house within a month before the making of the complaint, is not one of the elements of the offence which subjects the liquor seized to forfeiture, and is not an issue in the hearing after the service of the search-warrant. The warrant being duly issued, the only question to be tried is whether the liquors were, at the time of making the complaint, kept for the purpose of being sold in violation of law. See Commonwealth v. Intoxicating Liquors, 105 Mass, 181.

Exceptions overruled.