259 Mass. 109 | Mass. | 1927
The only question raised by this bill of exceptians is, whether certain certificates purporting to be made by the assistant analyst of the department of public health were properly admitted in evidence to show the alcoholic content of liquor alleged to have been kept unlawfully and exposed for sale by the defendant with intent unlawfully to sell it.
There was evidence that a police officer, one Conroy, seized liquor on the defendant’s premises and delivered it to the sergeant, Curran, in charge of the liquor squad of his station; that Curran on the same day transmitted samples of the liquid to the department of public health with letters of transmission substantially in the form of certificate set out in G. L. c. 138, § 55, declaring that it was seized by him on August 20, 1926, from Lena Stoler, 33 Dover Street, requesting that the percentage of alcohol be ascertained and a certificate upon an annexed form be returned to him, and giving his name and address. Certificates upon the forms annexed were returned, showing analyses made August 21, 1926, which disclosed percentages of thirty-three per cent and thirty-three and six tenths per cent of alcohol by weight in the samples at sixty degrees Fahrenheit. There was evidence that it is the practice of the police of Boston that officers who make seizures of liquor turn it over to the sergeant in charge of the liquor squad who prepares the certificote to be sent to the department of public health with the liquor to be analyzed, asserts in the certificate that the seizure was made by him although, in fact, made in his absence and by another officer, and does not set out the name and address of the officer who actually took the liquor.
The analyst., or assistant analyst of the department of
By G. L. c. 138, § 55, it is provided that “A certificate shall accompany each sample of liquor sent for analysis by an officer to the department of health stating by whom the liquor was seized, the date of the seizure and the name and residence of the officer who seized said liquor.” Section 55 requires the department to note upon the certificate the date of receipt and the analysis of the liquors and the per-of alcohol; and it provides that the certificate “may be” in a form which follows. By § 56, a certificate substantially in the form set out “shall be admitted as evidence on trials for the forfeiture of intoxicating liquors as to the composition and quality of the liquors to which it relates.”
The defendant contends that the requirements of § 55 are mandatory with regard to liquors transmitted for examination under § 54 as amended and revised; and that, consequently, the failure to assert seizure by officer Conroy and to give his name and address, in the letters of transmission requesting the certificates here offered in evidence, deprives the certificates of the evidentiary character that certificates which complied strictly with the statute would possess.
The provisions of law in regard to the certificate and its contents now embodied in §§ 55, 56, 57, and 58, were first enacted in St. 1882, c. 221. That statute, entitled “An Act to Regulate the Inspection and Analysis of Intoxicating Liquors,” by § 3 required the Secretary of the Common
No case is called to our attention, and we find none, which passes upon the admissibility in evidence, as proof of the alcoholic content of liquor seized, of the certificate provided for by the act of 1875 and its subsequent reenactments, in a trial for infractions of the liquor law, before it appeared as G. L. c. 138, § 54. In Commonwealth v. Magee, 141 Mass. 111, Commonwealth v. Kendrick, supra, and Commonwealth v. Brelsford, 161 Mass. 61, the State assayer or an assistant was called by the prosecution to prove the alcoholic content disclosed by the analysis.'
Any doubt which might arise in regard to the admissibility of the certificate, however, is now removed; for § 54 of G. L. c. 138, was amended by St. 1921, c. 495, and St. 1922, c. 22, so that the certificate of the analyst or assistant analyst, which can be obtained only for use in enforcing the laws of the Commonwealth, is now made prima facie evidence. Its language, hereinbefore quoted, is manifestly intended to apply to all proceedings in court for vindication of the liquor laws.
Exceptions overruled.