Commonwealth v. Clark

| Mass. | Jan 15, 1860

Bigelow, J.

1. We are of opinion that the jury were rightly instructed upon that part of the evidence in the present case, which was offered for the purpose of showing that the defendant had made sales of intoxicating liquor in violation of the statute. The distinction between a sale and exchange of property is rather one of shadow than of substance. In both cases the title to property is absolutely transferred, and the same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of barter. It can make no essential difference in the rights and obligations of parties, that goods and merchandise are transferred and paid for by other goods and merchandise instead of by money, which is but the representative of value or property.

If there can be any doubt on the question whether an exchange can be deemed a sale at common law, it is quite clear that no such doubt can exist under the provisions of law upon which the indictment in the present case is founded. By Si. 1855, c. 215, § 15, it is enacted that if any person “ shall, directly or indirectly, on any pretence or by any device, sell, or in consideration of the purchase of any other property give to any person any spirituous or intoxicating liquor,” he shall be subject to the penalties in that section provided. The intention of the legislature by this provision was manifestly to cover every case of the transfer of intoxicating liquors for value, in whatever form the consideration for such transfer might be given or paid.

But it is urged, and this is the main ground on which the defendant rests his argument in support of this exception, that § 15 relates only to the offence of making single sales, and that its terms, enlarging the usual definition of a sale, cannot be extended to § 17, which provides for the offence of being a common seller. The obvious answer to the argument is, that the offence of being a common seller is a compound one, consisting of three or more single sales made in violation of the provisions of the statute, to be proved in like manner and by the same evidence as under § 15. Such is the express enactment in § 17, which provides that any person, who shall be a common seller “in violation of the provisions of this act,” shall be subject to the penalties therein prescribed. Any other construction of these provisions would open a wide door by which the statute could be readily evaded in one of its most important features. We think therefore, whether the transaction assumed between the parties the form of an exchange of grain for intoxicating liquor, or a loan of liquor, to be repaid by other liquor of similar kind and quality, it was competent for the jury to find that it was a sale within the true meaning of the statute. See Mason v Lothrop, 7 Gray, 358.

2. The omission of the defendant to produce his son as a witness to meet and explain the evidence offered by the government in support of the indictment was a proper subject of comment by counsel before the jury, and might well be considered by them in connection with the testimony in the case. The witness was in the employment of the defendant and in his interest, and could probably have given an explanation of some of the facts tending to show the guilt of the defendant, if they were susceptible of any construction favorable to his innocence. The failure to call the witness was not relied on as substantial proof of the charge by the government; other evidence had been offered to establish that, which was submitted to the jury with proper instructions. If this evidence, unexplained, tended to prove his guilt, and he failed to bring evidence within his control to explain it, his omission to do so was a circumstance entitled to some weight in the minds of the jury.

3. The conversation which the witness Osgood had with the person who claimed the gin in his possession seems to us to have been competent, on two grounds. It was a part of the same conversation which had been put in by the government. It was also part of the res gestee. The fact that the gin was left with the witness by a person unknown to him, and was subsequently claimed by another stranger, had been proved by the government. It was therefore competent for the defendant to show the entire transaction and prove all that was said at the time the claim was made.

4. The conversation between the witness and the defendant at the time they attempted to make a settlement of their accounts was incompetent. It was an attempt to prove the declaration of the- defendant in his own favor, made in a wholly independent conversation, of which no proof had been personally offered by the government.

5. The instructions as to the evidence necessary to convict the defendant of being a common seller were not in accordance with Commonwealth v. Tubbs, 1 Cush. 2, which prescribes the rule applicable to the amount of proof necessary to sustain this charge. The jury must be satisfied that at least three distinct sales have been made by the defendant during the time alleged in the indictment. These may be proved either by direct evidence of the actual sales, or by other proof which satisfied the jury that they have been made by the defendant. This rule is not changed by St. 1855, c. 215, § 17, which only enacts that three sales shall be prima facie evidence of the commission of the offence, but does not directly or by implication provide that the offence can be proved by any testimony which falls short of establishing the fact that three sales have been made by the party charged.

6. The several grounds of the motion in arrest of judgment have been substantially settled by previous decisions. That the indictment is not bad for including distinct offences in different counts is determined in Commonwealth v. Hills, 10 Cush. 530; that after verdict it is no sufficient ground for arresting the judgment that it is not averred that the liquor was manufactured for sale in this commonwealth is settled in Commonwealth v. Jones, 7 Gray, 415; and that all authority to sell or manufacture for sale is sufficiently negatived, and that it is not necessary to aver the kind or quantity of intoxicating liquor manufactured for sale by the defendant is within the principle of Commonwealth v. Conant, 6 Gray, 482, and cases there cited.

Exceptions sustained; motion in arrest overruled.