Commonwealth v. Galligan

At the trial of an indictment against two persons for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, an instruction to the jury, that, "if one was the sole proprietor, and the other was present, aiding and abetting him in acts of proprietorship and control, both might be found guilty of maintaining the tenement,” is erroneous. At the trial of an indictment against A. and B. for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, a witness testified that the saloon, during the time named in the indictment, was, to his personal knowledge, A.’s. The defendants, on cross-examination, inquired of the witness what personal knowledge he had as to A.’s proprietorship of the saloon, and the witness answered that he knew from the books of the town assessors that the saloon was taxed to A.; that he had also seen a lease of the saloon to A. covering this period, although he did not know whether A. signed it, and knew nothing further about the lease except what C., the lessor and owner of the estate, had told him, A. not being present at the time; and that he had had a conversation with A. upon the street, during the time named in the indictment, in regard to carrying on the business there after the authorities had refused to grant a license for the place. The judge instructed the jury that the assessors’ books, showing a taxation of the saloon to A., were not competent evidence that he was the proprietor; that what C. said about him or the lease in his absence was not evidence against him; and that an opinion founded on matters of that kind could not be called personal knowledge. Held, that the jury should have been instructed to disregard the testimony of the witness, except that part of it which contained the conversation with A.

Indictment, against Edward H. Galligan and James Galligan, for keeping and maintaining a common nuisance, to wit, a tenement in Canton, used for the illegal sale and illegal keeping of intoxicating liquors, on April 1, 1886, and on divers other days and times between that day and September 6, 1886. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows .- The defendants admitted that the tenement identified by the evidence as a saloon in Canton was, at different times during the time alleged, used for the illegal keeping and illegal sale of intoxicating liquors by some person. The government offered evidence tending to prove that both defendants were present in the saloon at such times, except that, as to some of the times, it was in doubt whether both were present. The issue.was mainly as to the proprietorship of the saloon, and the relation of the defendants thereto and to- each other. The evidence left it in doubt as to whether the defendants were joint proprietors of the saloon, or whether Edward was the proprietor and the employer of James, or whether James was the proprietor and the employer of Edward. One Pushaw, a member of the bar, selectman, and special police officer, testified that the saloon, during the time named in the indictment, was, to his personal knowledge, Edward’s. The defendants objected to this testimony, contending that the witness had no such personal knowledge, and asked the judge to strike out the testimony, but the judge refused the motion. The defendants, on cross-examination, inquired of the witness what personal knowledge he had as to Edward’s proprietorship of the saloon, and the witness answered that he knew from the books of the town assessors that the saloon was taxed to Edward; that he had also seen a lease of the saloon to Edward covering this period, although he did not know whether Edward signed it, and knew nothing further about the lease than what one Edwin Wentworth had told him, Edward not being present at the time; that Wentworth was the lessor and owner of the real estate, and that the witness had the lease as counsel for Wentworth in connection with contemplated legal proceedings depending upon it; and that he had had a conversation with Edward upon the street, during the time named in the indictment, in regard to carrying on the business there after the authorities had refused to grant a license for the place. The defendants contended that the witness had no such' personal knowledge as he had testified to, and that the information was not personal knowledge, and again moved to strike out the statement of the witness, that he had personal knowledge that the saloon was Edward’sbut the judge refused so to do. The judge instructed the jury that the assessors’ books, showing a taxation of the saloon to Edward, were not competent evidence that he was the proprietor; that what Wentworth said about him or the lease in his absence was not evidence against him ; and‘that an opinion founded on matters of that kind could not be called personal knowledge. The defendants contended, and asked the judge to rule, that, if either defendant was the proprietor of the saloon, the other defendant would not be responsible for any act done by him in the presence of the proprietor; that, to make a bar-keeper or agent responsible for the offence charged, the government must prove that he had, for some substantial portion of the time named, the sole charge and control of the tenement while it was used for the illegal business. The judge refused so to rule; and instructed the jury that, if one was the sole proprietor, and the other was present, aiding and abetting him in acts of proprietorship and control, both might be found guilty of maintaining the tenement. The jury returned a verdict of guilty as to both defendants ; and they alleged exceptions.