Commonwealth v. Reed

Intoxicating Liquors — Illegal Sale and Keeping — Judgment of Forfeiture — Conviction. On the trial of a complaint against intoxicating liquors, under Pub. Sts. c. 100, § 30, no judgment of forfeiture can be rendered unless it is proved that the liquors seized, or some part thereof, were owned or kept or deposited by the person charged in the complaint. A judgment in such case, ordering the delivery of the liquors to a claimant wiio is not named in the complaint, settles nothing as to the legality or illegality of such claimant’s intention. One may be convicted of keeping a tenement used for the illegal sale and keeping of intoxicating liquors, upon proof that he kept the tenement for the purpose of having it used by somebody else for the illegal sale and keeping of liquor, ■ although he did not intend to make any sale himself.

Complaint, for the keeping of a tenement for the illegal sale and keeping of intoxicating liquors between May 1, 1892, and January 1, 1893, at Gardner. At the trial in the Superior Court, before Maynard, J., it appeared by the record of the First District Court of Northern Worcester, that upon complaint made to that court on December 31, 1892, certain liquors therein named were, on June 18, 1892, and up to the date of the complaint, kept by the defendant and one Spencer upon the premises alleged in the complaint to be illegally kept by the defendant, and a warrant issued ; that under it one and a half quarts of whiskey in two bottles were found and seized upon the premises; that notice duly issued to the defendant and Spencer, and all other persons claiming an interest in the liquors, to appear and show cause why they should not be forfeited; that the notice was returned to court on its return day; that Webster Kendall appeared by -counsel and claimed the liquors; that on January 18, 1893, a hearing was had, and the court found that the liquors were the property of Kendall, and ordered their return to him; and that on January 19, 1893, they were so returned. One Wilson, a police officer of the town of Gardner, testified that the warrant was given to him to serve; that he and one McIntyre proceeded to search the premises; that he found behind the register counter of the hotel, in a pocket of an overcoat, a quart bottle of whiskey; that in the kitchen on the safe he found about one half-pint of whiskey in a bottle ; that they found no other intoxicating liquors in the house ; that the same liquors were brought on January 18,1893, before the First District Court of Northern Worcester; that upon the hearing as to the forfeiture of the liquors he testified identically as he had in the case at bar; and that Kendall did not testify. McIntyre testified that he was with Wilson in the search in question ; that he testified in the lower court as Wilson testified; that he testified upon the question of the forfeiture of the liquors identically as he now testified, except that he testified in the lower court that Kendall claimed the liquors at the time of the finding; and that there was no evidence upon the hearing beside that of himself and Wilson. No further evidence was offered concerning these liquors except that, upon cross-examination, Kendall, called as a witness by the defendant, testified to the ownership of the liquors. It appeared in evidence that the premises in question were used by -the defendant as a hotel. One Briggs, a witness for the government, testified that in December, 1892, he stopped several days at this hotel; that at various times during this period he bought whiskey there from Kendall, who was a hostler for the defendant, from one Draper, who was clerk of the hotel, and from the defendant; that he had seen these parties make sales of whiskey to other persons; and that these sales to him and to other parties were usually .made from a bottle taken from their pockets, but sometimes from a bottle taken from a valise. He further testified that, in a conversation with the defendant in regard to the risks of the business, the defendant said that, if a raid was made, he would have some one claim the liquors; all of which evidence was denied by Draper, Kendall, and Reed. At the close of the evidence, the defendant asked the judge to strike from the record the evidence as to the search and seizure. The judge refused so to do, and the defendant alleged exceptions. The defendant also asked the judge to instruct the jury that they were not to take into consideration the evidence as to the finding of the liquors upon the premises and that the record was conclusive in this case that the liquors were not kept there by the defendant for the purpose of illegal sale. The judge refused so to do, and instructed the jury that the record introduced was conclusive upon the government that the liquors seized upon the search-warrant belonged to Kendall, and the fact that they were found and were seized upon the premises upon the warrant, was not to be considered by them against the defendant, unless they should find that they were owned and kept there by Kendall for the purpose of being sold by the defendant and his servants within the scope of their authority. The jury returned a verdict of guilty; and the defendant alleged exceptions.