Commonwealth v. Smith

The provision of St. 1868, c. 141, § 21, that the term intoxicating liquor in said statute shall be construed to include cider, applies to an indictment under the Gen. Sts. c. 87, § 7, for keeping a liquor nuisance. On an indictment under the Gen. Sts. c. 87, § 7, for keeping a liquor nuisance, proof that the defendant, as agent of a club, bought intoxicating liquors with money advanced by the club; that the liquors purchased were the property of the club; that checks of the denomination of five cents each were delivered to each member to the extent of the amount of money advanced by him; that the defendant was a member of the club and delivered to each member, upon presentment of the checks, from time to time, liquor of the club to the amount of the checks presented ; and that the residue of undelivered liquors, amounting by calculation to twenty per cent., was to belong to the defendant as compensation for his services and for the use of his room; does not justify a ruling that the facts proved would, as matter of law, be a sale; but whether the facts amount to an evasion of the law is a question for the jury.

Indictment charging that the defendant, on August 1, 1868, and on divers' other days and times between that day and May 1, 1869, at Easthampton, “ knowingly, wilfully, and without having any legal appointment or authority therefor, did keep and maintain a certain common nuisance, to wit, a tenement in said Easthampton, then and on said other days and times there used for the illegal keeping and illegal sale of intoxicating liquors.” In the superior court, before the jury were empanelled, the defendant moved to quash the indictment for the following reasons : “ because no offence was set out in the indictment; because it was not alleged but that the liquors alleged to have been kept and sold by the defendant were such as the defendant had a right to keep and sell under the provisos of the St. of 1868, c. 141, § 1; because it was not alleged that the acts charged were to the common nuisance, &c.; because it was not alleged but that the defendant was licensed and authorized by law to keep and sell the liquors named in the indictment; because the indictment was uncertain and void; because it was not alleged that the tenement was used as alleged by the defendant, or with his knowledge; and because the law had been repealed which made it illegal to sell or keep liquors during the time named in the indictment.” But Scudder, J., overruled the motion, and on the trial refused a request of' the defendant for a ruling that it was incumbent on the Commonwealth to prove want of license and authority, and also another request of the defendant for a ruling that the law concerning the keeping and sale of intoxicating liquors in force during the time covered by the indictment had been repealed by the St. of 1868, c. 141. There being evidence tending to show sales of cider by the defendant, he asked the judge to rule that, if the jury were satisfied that the cider was not intoxicating, its sale was not prohibited by law; but the judge refused so to rule. A witness testified that the defendant delivered whiskey to him several times, during the period covered by the indictment, under the following circumstances: “ Several persons formed a club of which the defendant was a member; they advanced a certain sum of money each, which was put into a common fund; the defendant was chosen agent of the club, and under instructions of the club purchased liquors and refreshments for the club; the fund was taken by the defendant and invested for them, and, a certain number of checks, of the amount of five cents each, were delivered to each member of the club, to the extent of the money advanced by each ; these checks were transferable only to other members of the club; upon presentation of the checks by any member to the defendant, he would deliver to that member liquor of the club, to the amount of the check presented ; on several occasions the defendant had delivered liquor to the witness, as such member, upon checks; upon distributing the liquor in the manner aforesaid, it was calculated that the liquor would so far overrun the amount to be delivered upon the checks, as to leave in undelivered liquor about twenty per cent, of the original cost; and the defendant was to have this residue, to compensate him for his services as agent, and for the use of' his room by the club.” “ The presiding judge, in view of all the evidence, ruled that, if the liquor in the defendant’s possession was bought by him as agent of the club, and the liquor so purchased was that of the club, the members advancing the money to purchase the same, and if checks were distributed to each of the members according to the amount advanced by each, and the- defendant was a member of the club, and delivered to each member upon presentation of such checks, from time to time, the amount of liquor represented by such checks, that would be a sale by the defendant.” The jury found the defendant guilty, and he alleged exceptions.