258 Mass. 410 | Mass. | 1927
The defendant was tried on a complaint for keeping and exposing intoxicating liquors with intent to sell contrary to law. A sergeant of police testified that he with another officer went to a dry goods store, where he found the defendant and his wife, in whose presence he read aloud an anonymous letter previously handed him by a superior officer. He was further allowed, subject to the exception of the defendant, to testify from memory what he said to the defendant and his wife, using the letter to refresh his recollection. In this there was no error. It was for the trial judge to determine whether the letter was read as a part of a single conversation with the defendant. His finding in this respect on the present record is not open to review. Commonwealth v. Russell, 160 Mass. 8, 10. Substantially all of the letter related directly or indirectly to the complaint on which the defendant was being tried. The trifling part which did not was irrelevant and could have done the defendant no harm. The defendant, in reply to the reading of the letter, merely denied that there was liquor in the store at that time and challenged the witness to find any. The charges contained in the letter were of much wider import, and of such other matters there was no denial. The evidence was competent upon the question whether the defendant’s equivocal statement respecting the charge amounted
The officers found in the store some of the usual accompaniments of illegal sale of intoxicating liquor. As they were about to leave the store, they asked the defendant to open the cash register. At first the drawer did not open fully, the defendant preventing by his body a complete opening. In the compartments at the back designed for holding bills were found bottles containing intoxicating liquor, each separately wrapped. The defendant’s motion for a directed verdict in his favor was denied rightly. The finding of bottles of intoxicating liquor in the circumstances described, the disingenuous and crafty conduct of the defendant in opening at first only partly the drawer of the cash register, and not fully until compelled by the officers, the frequent resort of men known to be drinkers to the store ostensibly used exclusively for the sale of dry goods, the presence of the defendant on the premises on numerous occasions and his more or less suspicious actions there, required the submission of the case to the jury. Commonwealth v. Kozlowsky, 243 Mass. 538, and cases there collected. Commonwealth v. D’Amico, 254 Mass. 512, 515. Since the adoption of the Eighteenth Amendment to the Federal Constitution and the enactment of statutes to enforce its prohibitions, the mere possession of intoxicating liquors has a new and less innocent aspect as evidence of guilt than it had theretofore. There can now be no lawful manufacture of spirituous or intoxicating liquor, or transportation of it, without permit. Lawful possession of intoxicating liquors is now more difficult and unlikely than it was hitherto. Commonwealth v. Green, 253 Mass. 458. Commonwealth v. Intoxicating Liquors, 258 Mass. 85, 87. Corneli v. Moore, 257 U. S. 491. Selzman v. United States, 268 U. S. 466.
There was evidence, which need not be narrated, to justify a finding that either the defendant or his wife was in control of the store. The charge to the jury upon this point was not
The charge of the judge, to the effect that when a wife performs such criminal acts as are here in question in the presence of her husband there is a presumption, rebuttable by evidence or by other circumstances, that she is acting under his coercion and that he is responsible for her acts, was in conformity to numerous decisions rendered since the enactment of the comparatively modern statutes ameliorating the common law conditions of married women. The presumption is disputable. Doubtless it has lost something of its force by reason of the wider liberty of married women established by legislative enactments and by the usages of society, and hence may be more easily overcome by evidence. But no law has abolished the presumption and it still exists for what it is worth in the light of the facts of each case. Commonwealth v. Wood, 97 Mass. 225. Commonwealth v. Barry, 115 Mass. 146, 148. Commonwealth v. Kennedy, 119 Mass. 211. Commonwealth v. Carroll, 124 Mass. 30. Commonwealth v. Pratt, 126 Mass. 462. Commonwealth v. Hill, 145 Mass. 305, 307, 308. Commonwealth v. Walsh, 165 Mass. 62, 64. Commonwealth v. Adams, 186 Mass. 101, 105.
The case at bar did not call for any further definition of the respective rights and criminal responsibility of husband and wife touching business confessedly belonging to the wife in her own right and in her exclusive possession and control.
Counsel for the defendant argued to the jury that the letter used by the police sergeant in his testimony respecting his interview with the defendant was spurious and was obtained since the trial in the Municipal Court, because it was not produced at that trial. With respect to that matter, the judge instructed the jury that “at the trial of criminal cases in municipal courts of this Commonwealth, the government is ordinarily not represented by an attorney; such cases are ordinarily prosecuted by a sergeant of police or police officer; that the police officer sometimes asks the questions of the government witnesses; that oftentimes the police officer so prosecuting does not know much about the rules of evidence; that it is not at all unusual for the police to have evidence in
Exceptions overruled.
