Commonwealth v. McNeff

Holmes, J.

1. Commonwealth v. Patterson, 138 Mass. 498 , did not decide that even a single illegal sale might not be evidence of maintaining a liquor nuisance, (Commonwealth v. Coolidge, 138 Mass. 193 ,) but simply that a single sale, made it might be casually and without premeditation, could not be said necessarily, and as matter of law, to make the seller guilty of maintaining such a nuisance. If illegal sales on two different days were proved, the element of the continuing use of the building for that purpose, which would not necessarily follow from one sale, would be inferred more easily, and might be inferred by the jury. Commonwealth v. Tabor, 138 Mass. 496 . Commonwealth v. Murray, 138 Mass. 508 . The ruling of the court on this point was sufficiently favorable to the defendant.

There was an oversight in the instruction that “ evidence of sales to a person who was a drunkard, or a person intoxicated and known to the defendant to be intoxicated, would be evidence, ” &c., as it did not explicitly require that the drunkard should be “ known to be a drunkard.” Pub. Sts. c. 100, § 9, cl. 4. But an important part of the evidence was admitted, as we understand it, partly at least, for the purpose of showing that the defendant knew that a person to whom he sold was a drunkard, and the jury were then told that they must be satisfied that the defendant knew it. The defendant’s knowledge seems to have been one of the controversies in the case; and, as the judge’s attention was not called to this slip of language, we think it fair to assume that the words “known to the defendant to be intoxicated” were understood to extend the requirement of knowledge by implication to the case of the drunkard also, or at least that the omission was not understood to overrule the requirement of knowledge which had been laid down before, and which the whole course of the case had shown to be insisted on as material.

2. The exceptions do not show when the sales to O’Brien took place. We infer that they were not the same sales which were proved before the trial justice; but if, as may be presumed, they were sales within the time during which the defendant is alleged in the complaint to have maintained the nuisance, they tended to establish the same offence of which the defendant was convicted below. Commonwealth v. Ronan, 126 Mass. 59 . The *410 sales were not the' offence, as in Commonwealth v. Blood, 4 Gray, 31 ; but only evidence of the offence. But if the sales had. been before the time laid in the complaint, they would have been admissible, so far as appears, upon the question whether the defendant kept the house. Commonwealth v. Kelley, 116 Mass. 341 .

3. The evidence that the defendant testified in another case, in October, 1886, “ that he knew said O’Brien had frequently been intoxicated, but that he had never sold to him when he was intoxicated, although he had sold to him when he was not intoxicated,” was admissible as tending to show that the defendant knew that O’Brien was a drunkard between May 1 and November 1, 1886, if the other testimony showed sales to O’Brien during that time, which must be presumed, if material, against the excepting party. But if the sales to O’Brien were not made at that time, still, so far as appears, the. evidence was admissible “ as tending to show, in the absence of any apparent change, the nature of the defendant’s continuous occupancy of the premises as keeper.” Commonwealth v. Carney, 108 Mass. 417 .

Exceptions overruled.