Commonwealth v. Fitzgerald

80 Mass. 14 | Mass. | 1859

Dewey, J.

The evidence of the acts in reference to the delivery of a bottle from the bar of the defendant by a woman, in the absence of the defendant, were competent evidence to be submitted to the jury, in connection with other evidence in the case. The facts that liquors were kept there, that she was tending bar for the defendant, and that there was other testimony tending to show that the liquor found there was kept for sale by the defendant, were proper circumstances to be considered by the jury. The instruction was properly guarded as to the necessity of the jury finding that the woman was there by the authority of the defendant and was acting as his agent in making the sale.

The further question arises upon a motion in arrest of judgment, alleging a defect in the record in reference to the authority of the special justice of the police court to act in the case. It is said that by the act establishing the police court of Chicopee, power to act is given to the special justice only in case “ of the absence, sickness, interest or any other disability of the standing justice,” and that the record should show such a case to exist. If it be necessary that this fact appear on the record of the particular case in which such special justice acts, it does thus appear in the present case. The complaint and warrant are connected, bearing the same date, and the warrant requiring the arrest of the defendant “ to answer to the foregoing complaint this day made,” and to this is appended the certificate “the standing justice being absent from the town of Chicopee and unable to attend.” This fact is again certified in the record of the case, reciting the proceedings at the hearing of the case on the same day. Exceptions overruled