Commonwealth v. Smith

102 Mass. 144 | Mass. | 1869

Ames, J.

Nearly all the objections relied upon by the defendant in his motion to quash the indictment, and in the exceptions taken at the trial, have been disposed of by repeated decisions of this court. Commonwealth v. Welsh, 1 Allen, 1. Commonwealth v. Hill, 14 Gray, 24. Commonwealth v. Edds, Ib. 406. Commonwealth v. Wright, 12 Allen, 190. Commonwealth v. Howe, 13 Gray, 26. Commonwealth v. Dean, 14 Gray, 99. Commonwealth v. Shea, Ib. 386. It has recently been decided that the chapter of the General Statutes, under which this prosecution is brought, has not been repealed. Commonwealth v. Carpenter, 100 Mass. 204.

One of the rulings of the learned judge of the superior court, a^ the trial, appears, however, to have been erroneous. The a rangement described in the bill of exceptions for the formation of a club, the purchase of liquors with their joint funds, a id their distribution among the members by the agency of the defendant, may have been a mere evasion of the law. Whether it was really so, however, was wholly a question of fact, to bo pa ssed upon by the jury, under proper instructions. The court was not warranted in assuming, as a matter of law, that it was necessarily an evasion, or that, as a matter of law, the facts stated, to use the language of the presiding judge, “ would be a sale.” It certainly might happen, and not unfrequently has happened, that a number of persons unite in importing wines, or other liquors, from a foreign country, to be divided between them according to some agreed proportion. It could not seriously be contended that the person who should receive the liquor so imported, at his place of business, and make or superintend the division among the contributors to the purchase money, is a seller of intoxicating liquors, or that they buy the liquors of him. It is difficult to see how it could make any difference that the liquors are of various kinds, and were purchased in this country instead of being imported from abroad, or that the person who is to make the distribution delivers them in small quantities, and keeps his account by means of tickets or checks. If the liquors really belonged to the members of the club, and had been previously purchased by them, or on their account, of some person other than the defendant, and if he merely kept the liquors for them, and to be divided among them according to a previously arranged system, these facts would not justify the jury in finding that he kept and maintained a nuisance, within the meaning of the statute under which he is indicted. There would t e neither selling, nor keeping for sale. On the other hand, if tb e whole arrangement were a mere evasion, and the substance of the transaction were a lending 'f money to the defendant, that he might buy intoxicating liquors to be afterwards sold and charged to the associates, or if he was authorized to sell or did sell, or keep any of the liquors with intent to sell, to any persons not members of the club, he might well. be convicted. This, however, would be a question not of law but of fact, and would fall wholly within the province of the jury.

Exceptions sustained.