258 Mass. 85 | Mass. | 1927
This is a complaint for the forfeiture of “About four gallons of mixed liquor in four metal containers and vehicle to wit: Ford automobile in the possession of” one Philip Landberg, “who then had no license, authority, or permit to transport, such intoxicating liquor,” and alleging further that “said intoxicating liquor had been brought into said city [of Boston] by the said Landberg in violation of sections two-A, fifty-five, and sixty of the said chapter [G. L. c. 138] and of the acts in addition thereto and in amendment thereof and was by him intended for sale contrary to law.” Warrant for the seizure of the liquor containers and vehicle thereupon issued, and return of seizure in accordance therewith was duly made. Order of notice issued pursuant to the complaint and statute. Marmon Boston Company appeared as claimant of the automobile.
The case was submitted to the Superior Court on an agreed statement of facts, the claimant having waived right of trial by jury. It comes before us on exceptions. This is in conformity to the practice approved in Commonwealth v. Kemp, 254 Mass. 190.
The claimant was on June 2, 1925, the owner of the automobile, and sold it to Landberg under a conditional sale contract with note attached to be paid in instalments. Under the contract, title to the automobile remained in the seller, the present claimant, until all amounts due should be fully paid. An unpaid balance is due. The right of the claimant to the automobile has not been questioned in argument except upon the ground that it is subject to forfeiture because of illegal use in connection with intoxicating liquor. Worcester Morris Plan Co. v. Mader, 236 Mass. 435, 438.
Just before the present complaint for forfeiture was made, complaint was made against Landberg for the illegal transportation of intoxicating liquor in a vehicle without license or authority. To that complaint Landberg pleaded guilty
The relevant provisions of the statutes of this Commonwealth touching forfeiture in connection with intoxicating liquor are G. L. c. 138, §§ 61-75, both inclusive. These provisions authorize the seizure and forfeiture of “spirituous or intoxicating liquor” intended for sale contrary to law, “the casks or other vessels in which it is contained, and all implements of sale and furniture used or kept and provided to be used in the illegal keeping or sale of such liquor.”
The mere keeping of spirituous or intoxicating liquor is not made an offence under our statutes. Commonwealth v. Kozlowsky, 243 Mass. 538, 541. It is only when such liquor is exposed or kept for sale contrary to law that keeping becomes a crime. G. L. c. 138, § 2. The manufacture of spirituous or intoxicating liquor, as well as transportation of such liquor without permit, is made a crime by St. 1923, c. 370. Commonwealth v. Green, 253 Mass. 458. There is no express provision of our statute for the forfeiture of the vehicle in which intoxicating liquor is thus transported, such as is found in some other jurisdictions. See, for example, Laws of Kansas, 1919, c. 217, §§ 1-5. Van Oster v. Kansas, 272 U. S. 465.
Circumstances may exist which would render an automobile liable to forfeiture under our statutes. Commonwealth v. Intoxicating Liquors, 253 Mass. 581, 586. See State v. Nadeau, 81 N. H. 183. There is nothing in this record to support such a finding. No fact is agreed respecting the containers of the liquor. The allegation of the complaint is that the intoxicating liquor was “ in four metal containers.” It is not alleged that the automobile was a container. The record is bare of facts warranting the conclusion that the automobile was an implement of sale or furniture used or kept and provided to be used in the illegal keeping or sale of such liquor. There is no allegation to that effect in the complaint. The agreed facts do not show that this liquor or any of it was sold or was kept for sale contrary to law.
Exceptions sustained.