Commonwealth v. Gavin, 160 Mass. 523

160 Mass. 523 | Mass. | 1894

Holmes, J.

We must take it that the defendant’s bar-keeper, John Gavin, testified that he had sold intoxicating liquor to the minor Murphy within the time covered by the indictment, and that he also testified that it was beer. No question seems to have been raised as to his competency to make the statement, and the evidence does not appear to have been objected to. The testimony was evidence that the beer sold by the witness was intoxicating. Haines v. Hanrahan, 105 Mass. 480. Commonwealth v. White, 15 Gray, 407. Carl v. State, 87 Ala. 17, 23. It follows that the presiding judge could not rule that there was no evidence that intoxicating liquors had been sold illegally.

The minor Murphy testified that he had bought beer at the same place of the defendant’s bar-keeper, Frank Gavin, at different times. The judge instructed the jury that, if they found that John Gavin testified as above stated, they would be justified in finding “beer” as used by the witnesses to mean intoxicating liquor. So far as appears, the jury might have inferred that the bar-keeper referred to by the minor was the same who had testified, notwithstanding the minor’s calling him Frank. If so, they well might infer that he meant the same kind of beer with reference to all the occasions, that the barkeeper’s evidence referred to one of these at least, and that the kind was shown by the bar-keeper’s evidence. But if there were two bar-keepers, both named Gavin, the one who testified showed that intoxicating beer was kept for sale on the premises and had been bought by the same minor there. It is not a very violent inference that, when the minor testified to other purchases of beer on the premises, he meant the same kind of thing, whatever may be the limit of the jury’s right to interpret the English language as commonly used apart from any elucidation from the circumstances. See Myers v. State, 93 Ind. 251; Briffitt v. State, 58 Wis. 39; Black, Intoxicating Liquors, § 17. Whether the instruction extended to any other testimony than that of Murphy, is not made clear by the bill of exceptions. But if we are to take it as doing so, in the absence of any statement except that the government put in evidence that beer was sold upon the premises by the defendant’s bar-keeper to minors, we cannot say that it was wrong. It appears that the bar-keeper had intoxicating beer for sale, and it does not appear that he had any other. t Exceptions overruled.