Commonwealth v. Mason

At the trial of an indictment for maintaining a tenement used for the illegal sale of intoxicating liquors, a witness, who testified to seeing sales of such liquors by the defendant to several persons, also testified that he was employed by a certain association to procure evidence of illegal sales of intoxicating liquors. The defendant asked the judge to rule that the evidence of the witness was “to be received with great caution and distrust; ” and that the fact that the witness did not fortify his evidence by producing the persons to whom the sales were made, to testify, if he could have done so, detracted from the weight of his testimony, and was “just ground for suspicion of unfairness and of possible corruption.” The judge declined so to rule; and ruled that the matters embraced in the requests were proper to be taken into consideration by the jury in weighing the testimony of the witness. Held, that the defendant had no ground of exception.

Indictment for keeping and maintaining a common nuisance, to wit, a certain tenement in Taunton used for the illegal sale and illegal keeping of intoxicating liquors, on May 1, 1883, and on divers other days and times between that day and September 6, 1883. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions, in substance as follows: One Conlin and two persons named Noyes testified to seeing sales of intoxicating liquor by the defendant to four different persons, on June 8 and June 27, 1883, and one sale to Conlin on the premises; but, on cross-examination, they could give no description of the persons to whom the sales were made. The witnesses also testified that they were employed by the law and order league, an association of persons formed for the suppression of illegal liquor traffic; that one Dudley was the secretary of the league, and employed the witnesses to obtain evidence of illegal sales of intoxicating liquors; that they were paid fourteen dollars each per week, and their travelling and hotel expenses, and, when they bought liquors and cigars in the course of obtaining such evidence, they charged the money thus used as a part of their expenses, and the same was paid for out of the money furnished them by said Dudley; and that they also had their witness fees in cases where they testified. The above was all the evidence of sales. One Peck, a police officer, testified that he had seen the defendant behind the bar on the premises several times, but could not say that he saw him there either on June 8 or June 27; that he had never been in the building, but that it was a place of common resort; and that he had seen numbers of persons go to and from the place within the time covered by the indictment. The defendant asked the judge to instruct the jury as follows: “ If the witnesses Conlin and the two Noyeses were engaged in the business of procuring evidence of violation of the liquor law for hire and reward, and it is fairly inferable that the permanence of their employment was dependent upon their success in securing convictions, they are interested witnesses, and their evidence is to be received with great caution and distrust.” The judge gave the instruction requested except the words, “ their evidence is to be received with great caution and distrust,” and substituted therefor the following words: “ The jury are to take that fact into consideration in weighing their testimony.” The defendant also asked the judge to instruct the jury, “If, by fair and reasonable diligence, the witnesses could have fortified their testimony by producing the persons whom they saw illegally buying intoxicating liquors, to testify, and they designedly omitted or failed so to do, it detracts from the weight of their testimony, and is just ground for suspicion of unfairness and of possible corruption.” The judge gave the instruction requested except the words, “it detracts from the weight of their testimony, and is just ground for suspicion of unfairness and of possible corruption,” and substituted therefor the following words : “That is a proper matter for consideration in weighing their testimony.” The jury returned a verdict of guilty; and the defendant alleged exceptions.