148 Mass. 470 | Mass. | 1889
1. No exception appears to have been taken to the evidence of what the officers found in the defendant’s building. The evidence would have been admissible, even if their search had not been authorized by their warrant. Commonwealth v. Welsh, 110 Mass. 359. Commonwealth v. McCue, 121 Mass. 358. Commonwealth v. Henderson, 140 Mass. 303.
2. There was a window and a mechanical contrivance, by which a man behind the bar, in the alleged bar-room, could see and exclude persons who entered the front room. In order to show that these were innocent contrivances, evidence was offered that, in other years, when the defendant had a license, he had always exercised great care as to the persons to whom and the times when he sold. The evidence was properly excluded. The fact of which evidence was offered was too remote in time and character from the fact sought to be established by inference, to have any tendency to prove it. Evidence seems to have been admitted that the contrivance was there in previous years, and had an innocent origin.
3. The last exception is to the instruction with regard to the beer found on the premises, that the finding of an article of merchandise in a place of business where merchandise is for sale, would have a tendency to show that it was there for sale. It is now argued that this was an instruction upon a matter of fact. But from the defendant’s request for an instruction to the effect that the presence of the articles would not tend to show that it was there for sale, it is evident that the judge’s
It is true in most cases, that, when a fact in issue is to be inferred from facts proved, the court cannot instruct the jury as to probabilities or presumptions of fact, but can only determine that, if the jury draw the inference upon the presumptions which they have learned from their experience of life, they will be warranted so far as the court knows, and will not be making a mere guess without adequate data. Commonwealth v. Briant, 142 Mass. 463. Doyle v. Boston & Albany Railroad, 145 Mass. 386, 388. Commonwealth v. Hayes, 145 Mass. 289.
But the phrase “ would have 'a tendency to show,” was not a ruling that there was a presumption of fact; it was simply the phrase which is commonly used to characterize evidence which is admissible to prove a fact in issue. See, for example, Commonwealth v. Doe, 108 Mass. 418, 420; Commonwealth v. Hayes, 114 Mass. 282; Commonwealth v. Gallagher, 124 Mass. 29, 30. It meant no more than that the jury would be warranted in drawing the inference if they thought it the proper one. See Commonwealth v. Clifford, 145 Mass. 97, 98. If the suggestion had been made that the jury might understand the court to imply an opinion, doubtless further explanations would have been given, as under our statute great care is taken to make language as colorless as possible.
Thus construed, the ruling was right with reference to the circumstances of this case. It does not appear that we have all the evidence before us. But it does appear that the room from which the cellar was entered was a bar-room, with a contrivance which might be used to prevent surprise, that the beer was concealed and in considerable quantity, and that there were drippings of- spirituous liquors in half a barrel of empty bottles called smugglers. We cannot pronounce the inference that the beer was kept for sale so little warranted by the teachings of experience as to be but a mere guess. Commonwealth v. Berry, 109 Mass. 366. Commonwealth v. Intoxicating Liquors, 116 Mass. 24. Commonwealth v. Doe, 108 Mass. 418. Commonwealth v. Hayes, 114 Mass. 282. Commonwealth v. Gallagher, 124 Mass. 29.
Exceptions overruled.