269 Mass. 460 | Mass. | 1929
The defendant was found guilty upon a comIplaint charging that he “did engage -in the business of Reselling -á ’certain 'ticket of -admission to a certain public ■'aniiisemeiit -. . :not ’being .. licensed according to law ,rso to do.” There was evidence for the prosecution that ^bout 7-:30 ip.-M. he was seen walking up and down the sidewalk and standing on the edge of the sidewalk in front of the ‘“Boston Garden” where a wrestling bout was being held, calling out that he had tickets for sale; and that he sold two tickets for $15 to a witness. He had two other tickets upon him when arrested. The box office price for the tickets was $5 each. There was no evidence of other sales by him at any time. He contends that there was error in the judge’s refusal to direct a verdict in his favor; in refusing to instruct the jury: “Making a single sale of tickets does not constitute engaging in the business of selling tickets”; and in certain instructions given. He relies chiefly upon Commonwealth v. White, 260 Mass. 300, in which we held that evidence of a single act of transportation of a passenger in a taxicab within the town limits of Brookline, did not establish that the driver was engaged in the business of transporting persons for hire in Brookline. That case was submitted on agreed facts which excluded the inference that the act was customary or one of a series, and proved that apart from the act in question no other transportation had taken place. It is nowhere intimated by the opinion that there would not have been a case for the jury had the agreed facts not precluded inferences which a jury might otherwise have drawn. It is true that the offence denounced by § 185A, added to G. L. c. 140 by St. 1924, c. 497, § 2, is engaging in the business “of reselling” tickets; and that it is the occupation and not an isolated act which is forbidden; Goodowsky v. Rubenstein, 225 Mass. 448, Commonwealth v. Schwartz, 197 Mass. 107; but as was pointed out in the Schwartz case, at page 109, one may be engaged in the business of selling although he has made no sale. A single sale taken with other circumstances
The defendant put in evidence, which, if believed, would furnish a complete defence. He took exceptions to portions of the charge which instructed the jury that much of this evidence was immaterial except upon the credibility of his testimony. Where he got the tickets which he had; what he paid for them; how it happened that the friend for whom he testified they were obtained was unable to use them; and that the ticket office at the “Garden” was closed; all were, as the judge instructed, of no importance except as they made his testimony more or less credible. There is nothing in the exceptions to this charge in these respects.
He excepted also to so much of the charge as stated, “Under the conditions testified to by the government witness, the defendant is guilty, and the fact that this was the only instance of sale is no defence. It might be a fair inference from the evidence that if the defendant sold two tickets he was going to sell the other two. If he was engaged in reselling a ticket he was engaged in the business as disclosed by the Commonwealth’s evidence. The word ‘business’ must be construed in the light of the statute in which it is used.” The entire charge is not before us, and we must assume that full and proper instructions were given with regard to what must be proved to entitle the prosecution to a verdict of guilty. The language excepted to is free from error. If the testimony of the Commonwealth’s witnesses with the inferences sought to be drawn from it, was believed beyond reasonable doubt to be true, the defendant was guilty; and that only one instance of sale was shown constituted no defence. An inference that if he sold two of the four tickets which he had he was proposing to sell
So ordered.
