Commonwealth v. McCluskey

| Mass. | Nov 27, 1877

Ames, J.

It was proved at the trial that the defendant kept a saloon for the sale of intoxicating liquors in the building- described as No. 4, and it is conceded that he was propeily convicted of the charge contained in the first count. To convict him upon the second, it was necessary to prove that the liquors found in the other building were kept by him for illegal sale. In that case it would be immaterial that they were not intended to be sold in the building where they were found. Commonwealth v. Intoxicating Liquors, 116 Mass. 24" court="Mass." date_filed="1874-10-02" href="https://app.midpage.ai/document/commonwealth-v-certain-intoxicating-liquors-6417786?utm_source=webapp" opinion_id="6417786">116 Mass. 24. Commonwealth v. Intoxicating Liquors, 116 Mass. 27" court="Mass." date_filed="1874-10-02" href="https://app.midpage.ai/document/commonwealth-v-certain-intoxicating-liquors-6417788?utm_source=webapp" opinion_id="6417788">116 Mass. 27. Both the place of deposit and the place of actual sale would be embraced in the description of common nuisances, as given in Gen. Sts. c. 87, § 6.

No exception lies to the refusal to order a separate trial upon each count. It was competent for the judge to confine the trial to-a single count, if he thought proper, but this is left entirely to:Ms discretion. Carlton v. Commonwealth, 5 Met. 532. Commonwealth v. Cain, 102 Mass. 487" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/commonwealth-v-cain-6415820?utm_source=webapp" opinion_id="6415820">102 Mass. 487.

With regard to the sufficiency of the evidence applicable to the ■ second count, it appeared that the two buildings were in close-proximity with each other; that the yard between the two was common to both, there being no division fence; and that the porch-which opened into this yard was only a few feet from the oack door of the saloon. There was a gate in the rear of the corner house, used in common by the occupants of both houses, and -through which customers found their way to the saloon. The defendant had often been seen to drive to this gate, and to carry jugs and demijohns through it and into the.yard. Two searches for liquors had been made, during the time covered by the indictment, in the corner house, and each time liquors were found, once in a locked closet in the porch and once in the cellar, contained in jugs, bottles and demijohns. Measures, tunnels and pumps were also found, which had been recently used, in the porch and the cellar. The owner of the corner building, and the occupant of the first floor, were called as witnesses, and testified that they had no knowledge of the liquors so found, and did not know that any were there. Also there was evidence that the saloon, although fitted up and much used and resorted to for the illegal sale of intoxicating liquors, had many times been searched by the police during the time covered by the indictment, without finding any such liquors whatever, except that on two occasions a very small quantity had been found, in bottles, on the person of the bar-tender. At the saloon they found tumblers, a drainer and a number of pint and quart flasks, but usually no liquors, and never what could be called a stock or supply of liquors, for such an establishment, “ much used and resorted to.” Under these circumstances, and in the absence of any explanation from the defendant, we cannot say that the jury might not have inferred that the jugs and demijohns found in the corner building, and containing intoxicating liquors, were those which the defendant had been seen to carry through the gate, and that they were kept by him in that building to supply his saloon. We therefore see no error in the rulings and instructions of the presiding judge. Exceptions overruled.