Commonwealth v. Reed

162 Mass. 215 | Mass. | 1894

Allen, J.

The judgment in the seizure case determined conclusively against the Commonwealth that the liquors were not kept or deposited by the defendant and intended for sale by him contrary to law, and that Kendall was the owner thereof. But there was no determination and no trial of the question whether Kendall kept them with an intent to sell them in violation of law. Kendall was not named in the complaint; no charge was made against him. He appeared, as authorized by statute, to defend his title to his property. The person believed to be the owner, possessor, or keeper of the liquors, intending to sell the same contrary to law, must be particularly set out by special designation, both in the complaint and in the warrant, and the offence must be fully, plainly, and substantially described in both. Pub. Sts. c. 100, §§ 30, 32. Any other person claiming an interest in the liquors and vessels seized may appear and make his claim verbally or in writing, and a' record of his appearance is to be made, and he is admitted as a party on the trial, becomes liable to costs if he fails, and has a right of appeal. §§ 37, 40, 41. St. 1888, c. 277. Nevertheless, though he thus becomes a party for some purposes, there is no complaint nor charge against him, except indirectly that the property which he claims is kept or deposited with unlawful intent by somebody else. The proceedings are in their nature criminal, and no charge of crime is made against him, and no criminal charge can be tried without a complaint in writing. Fisher v. McGirr, 1 Gray, 1, 29, 35, 42, 43.

In Commonwealth v. Intoxicating Liquors, 122 Mass. 8, it was said that the claimant who appears becomes a party, as defendant in the prosecution, who is to answer the charges in the complaint. The language of the court referred to a claimant who was charged in the complaint as being the keeper of the liquors, and is not fully applicable to a claimant who is not named in the complaint.

The judgment in the seizure case is conclusive against the government only as to those facts which were necessarily involved therein. Burlen v. Shannon, 99 Mass. 200. Sly v. Hunt, 159 Mass. 151, 153. Commonwealth v. Ellis, 160 Mass. 165. Kendall’s intention, whether lawful or unlawful, was not in controversy. The question of his title was the only one tried as to him. This being found in his favor, he was entitled to have liis property delivered to him unless it was kept by Reed with unlawful intent. If the complainants wished to charge Kendall with keeping it with an unlawful intent, they should have made that averment in a formal way, in a new complaint. On the trial of a complaint against intoxicating liquors, no judgment of forfeiture can be rendered unless it is proved that the liquors seized, or some part thereof, were owned or kept or deposited by the person charged in the complaint. An illegal intention on the part of any other person is not charged or put in issue, and cannot be tried; but if such other person appears as claimant and maintains his claim successfully, it tends to negative the charge in the complaint.

It is consistent with the former judgment that Kendall may have intended to sell the liquors unlawfully in the defendant’s tenement; and under the instructions of the court the jury have found that the defendant was guilty of keeping- his tenement for the illegal sale or keeping of liquors. This finding was warranted by proof that he kept his tenement for the purpose of having it used by Kendall for the illegal keeping and sale of liquors, although he did not intend to make any sale himself. Commonwealth v. Lynch, 160 Mass. 298.

The court therefore was right in refusing to give the ruling requested. Exceptions overruled.