Commonwealth v. Klosowski

Sanderson, J.

The defendant was convicted on two complaints tried at the same time: one, charging him with exposing and keeping intoxicating liquors with intent unlawfully to sell the same on April 8, 1924; the other, with maintaining a tenement for the illegal keeping and sale of intoxicating liquors, between March 23, and April 18, 1924.

Intoxicating liquors were seized April 8, 1924, in a store in a building owned by the defendant, where for two or three weeks alterations had been in progress. He told a police officer that he was opening a hardware store and stocking it up; that he was spending $3,000 on it. The trial judge, *151 subject to the defendant’s exception, permitted a police officer to testify that he asked one Wilinski, in the presence of the defendant while all three were in a store adjoining the one where the liquors were seized, and in the same building, whether he, Wilinski, ran that store. ' Wilinski said “no,” that he was employed by the defendant. The defendant made no reply. These words were spoken in an ordinary tone of voice and the defendant was at the time twenty to twenty-five feet away from the persons speaking. It was for the jury to say whether the defendant heard the statement, and, if so, by his silence admitted its truth. Commonwealth v. Galavan, 9 Allen, 271 . Commonwealth v. Brailey, 134 Mass. 527, 530 . The charge is not reported, and it must be assumed that proper instructions in regard to such testimony were given. A police officer also testified, without objection, that the defendant told him he employed Wilinski and paid him $15 a week.

The defendant, when asked about a part of the liquors seized on April 8, which were found under a board in the floor in the rear of the counter of the defendant’s store, and were wrapped in newspapers bearing the date April 5, 1924, said, “they must have been there since the last raid, which raid was on March 6.” The judge then admitted evidence, subject to the defendant’s exception, that certain liquors were seized on March 6, 1924, in another part of the same building in which the liquors were found on April 8,1924, and that the defendant at the time of the earlier seizure stated that the liquors then seized were his, naming their purchase and selling prices. The defendant having admitted that the liquors which he had on hand on March 6 were kept for sale, the jury could infer that his intention was to sell the liquors seized on April 8, and the testimony was limited by the rulings of the judge to that issue on the complaint for keeping with intent to sell. Commonwealth v. Vincent, 165 Mass. 18 . Commonwealth v. Stoehr, 109 Mass. 365 . The fact that the defendant was convicted of keeping with intent to sell the liquors seized on March 6, 1924, was called to the attention of the judge by the defendant, but no evidence of such conviction was introduced. This fact did not make incompetent his state *152 ment, in the nature of an admission, that his purpose in keeping those liquors was to sell them.

The other exceptions saved have not been argued and are treated as waived.

Exceptions overruled.