Commonwealth v. Locke, 114 Mass. 288

Commonwealth v. Locke

114 Mass. 288 | Mass. | 1873

Wells, J.

The allegation of the complaint, that the liquors had been sold or were intended for sale contrary to the provisions of the St. of 1869, c. 415, sufficiently sets forth an illegal sale or intended sale, and thus makes criminal the charge against the defendant.

The St. of 1871, c. 334, §§ 1 and 4, restored ale, porter, strong beer and lager bier to the class of liquors to be considered intoxicating, and, as such, subject to the prohibitions contained in St. 1869, c. 415; and repealed §§ 2 and 3 of St. 1870, c. 389 *293Sections 2 and 3 of the St. of 1871, were provisions in the na turc of a power to license, and did not repeal the prohibitions or penalties of the act of 1869. Those prohibitions and penalties remained in full force, except that they were inapplicable as to ale, porter, strong beer and lager bier, in those towns and cities which should so vote, and for the period during which the vote had effect. At the time of the offence complained of there remained no authority in cities or towns to permit sales, the provisions therefor having been repealed by St. 1873, e. 42, and any permission of the previous year having expired on the first Tuesday of May.

In respect of any defects of form in the complaint, the motion to quash was made too late.

The omission of an allegation negativing authority to make sales, if a defect at all, is a defect of form. The alleged sale and the alleged intended sale are averred to be contrary to the statute and illegal. The sale is not the offence with which the defendant is charged.

The complaint must be regarded as made under section 37 of the St. of 1869, c. 415. The offence there defined is that of receiving liquor that is the subject of an illegal sale already made or intended to be made, for the purpose of conveying it to the purchaser, other than himself. The illegality underlying this offence is that of the sale which has been or is intended to be made, and to be thereby carried into effect. It is immaterial • whether the purchaser intends to sell again or not; and, of course, immaterial whether the purchaser has a license, or would be authorized to sell. The name of the particular person, to whom the delivery is intended to be made, need not be alleged or proved. 1 'he carrier may have been employed or intrusted with authority to deliver to any one who would purchase from him. If such a sale would be illegal when made, then the offence charged in this complaint would be complete immediately upon receipt of the liquor for such purpose, although it was not then known who might become the purchaser.

The evidence as reported would warrant a jury in finding that the defendant was thus engaged in carrying into effect an illegal *294sale of liquor. That a sale had been made, or was intended, was a natural and obvious inference from the situation in which the liquor was found. That it was not a sale within any of the limited exceptions authorized by the statute might be presumed from the circumstances, including the character of the liquor. If the seller had been a person authorized to make such a sale, that was a fact which might fairly be supposed to be within the knowledge or means of knowledge of the defendant, and his omission to produce any evidence thereof might be taken to aid the inferences from the other circumstances. For the same reason any word or act of his, in the nature of confession that his conduct was illegal, would be competent to show not only that he had cause to believe that the liquor had been or was intended to be illegally sold, but also to show that such sale or intended sale was in fact an illegal one. The burden of proving affirmatively that the sale or intended sale was in violation of law, by negativing the authority or license of the person by whom it was made or intended, was placed upon the government; but the court rightly ruled that it need not be proved by direct evidence, but might be inferred from circumstances.

The testimony as to the character of the place before which the wagon was found was competent, as tending to show that a sale was intended. So far as it tended also to show that such a sale there would be to a person who intended to sell again illegally, it was immaterial under § 37. But the exception goes only to the admission of the testimony; and it was admissible for the purpose first named.

The defendant having requested the court to rule that the government must prove that the person, to whom the liquor was to be delivered, intended to sell the same in violation of law, cannot object because such a ruling was given; nor because the court instructed the jury that that proposition was embraced in the charge against the defendant. In other respects we find no error in the rulings and instructions at the trial.

Exceptions overruled.