| Mass. | May 4, 1889
The defendant was prosecuted for having kept his shop open on the Lord’s day for the purpose of doing business therein. The evidence showed that he was a tobacconist, and that he kept his shop open and made a sale of tobacco and cigars on the day named in the complaint. We understand this sale to have included tobacco and cigars in a single transaction. The defendant did not contend, at the trial, that he kept, or had a right to keep, his shop open on the Lord’s day for any other purpose than that of selling tobacco and cigars. The jury were instructed, in substance, that keeping one’s shop open to sell cigars on the Lord’s day would subject him to conviction of the offence named in this complaint; and the principal question in the case is whether that instruction was correct. Under the instruction, the jury must have found that the defendant’s purpose was to sell cigars, and in this aspect of the case the evidence offered in regard to tobacco was immaterial.
The act complained of was keeping open the shop, not making the sale, and the question arises under the St. of 1887, c. 391, § 2, which amends the Pub. Sts. c. 98, § 2, by adding a provision that nothing in this last section shall be held to prohibit certain named acts and kinds of business, among which is “ the retail sale of drugs and medicines.” If, upon the facts of this case, keeping the defendant’s shop open to sell cigars was merely keeping it open to sell drugs and medicines, the instruction was erroneous; but if, as matter of law, it was keeping it open for a
Ordinarily, whether a substance or article comes within a given description, is a question of fact; but some facts are so obvious and familiar that the law takes notice of them and receives them into its own domain. If the proof had been that the shop was kept open for the purpose of selling guns or pistols, it would hardly be contended that the judge might not properly have ruled that the sale of these articles was not a sale of drugs or medicines. The court has judicial knowledge of the meaning of common words, and may well rule that guns and pistols are not drugs or medicines, and may exclude the opinions of witnesses who offer to testify that they are. Commonwealth v. Peckham, 2 Gray, 514. Commonwealth v. Crowley, 145 Mass. 430" court="Mass." date_filed="1888-01-03" href="https://app.midpage.ai/document/commonwealth-v-crowley-6422608?utm_source=webapp" opinion_id="6422608">145 Mass. 430.
Cigars are manufactured articles familiar to everybody. The materials of which they are composed are carefully prepared and put into form, until they lose their original character as mere materials, and become articles of commerce, known by a new name and adapted to a particular use. We are of opinion that cigars sold by a tobacconist in the ordinary way are not drugs or medicines within the meaning of those words as used in the statute.
Many things which are not in themselves medicines may be put to a medicinal use, and when so used, they may become medicines. But there was no evidence in the present case that the cigars which the defendant sold were used, or were intended to be used, as a medicine, or that the defendant kept his shop open for the purpose of furnishing cigars to be used medicinally. The instruction must therefore be construed in its application to evidence of an ordinary sale of cigars, and, so applied, we are of opinion that it was correct.
In their application to the evidence of such a sale all the questions to the witness Harris were immaterial and incompetent.
The record in the case of Commonwealth v. Burwell was not between the parties now contending, and was rightly excluded.
The court rightly ruled that the United States Dispensatory could not be put in evidence. Commonwealth v. Brown, 121 Mass. 69" court="Mass." date_filed="1876-10-20" href="https://app.midpage.ai/document/commonwealth-v-brown-6418634?utm_source=webapp" opinion_id="6418634">121 Mass. 69.
We find no error in any other of the rulings or refusals to rule set out in the bill of exceptions.
Exceptions overruled.