Commonwealth v. Pease

| Mass. | Oct 15, 1872

Colt, J.

This indictment is for keeping a liquor nuisance. Gen. Sts. c. 87, §§ 6, 7. It was claimed by the defendant that the liquors found were intended by him for the manufacture of “ Sweet’s Bitters.” And this ground of defence was so far regarded as material by the government that evidence for the prosecution was produced that “ Sweet’s Bitters ” was in fact intoxicating, with the purpose no doubt of showing that its manufacture was a mere evasion, and that the article itself must be regarded as intoxicating liquor within the meaning of the law.

Upon this state of the case, a majority of the court are of opinion that on a cross-examination of the-witness for the prosecution, the defendant had a right to inquire what proportion of intoxicating liquor the article in question did contain. The interrogatory was made relevant and material by the course of the trial. After an attempt had been made to show that it was.intoxicating, the defendant should have been permitted to sh dw the contrary. The knowledge which the witness had upon the subject does not seem to us to have been so remote or uncertain as to justify its exclusion on that ground. It appears to have been a well known article of medicine kept for sale by apothecaries, grocers and others; the witness had known it for many years, and some years since had been employed by Dr. Sweet, the proprietor, in putting it up for sale. This is sufficient, in the absence of any suggestion that there had been a change in the ingredients of the article in kind or quality, to give the testimony weight and importance in its bearing upon the issue; and because of its rejection the Exceptions are sustained.