Commonwealth v. Austin

97 Mass. 595

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Wells, J.

The government, in cross-examination of the defendant, put in the fact that he had taken a license from the United States to sell intoxicating liquors at the place complained of as a nuisance, in order to show that he intended to ose and did use the place for that purpose. Its relation to the issue depends upon the intention and purpose with which the license was taken. It was proper for him therefore to explain his reasons for taking the license, so as to rebut the inference that might otherwise be drawn from it, and show that it was consistent with his testimony as to the manner of conducting the business. What passed between him and the assessor was competent, not to prove the facts stated, but to show the reasons and purpose for which the license was taken.

The record of the conviction of the defendant as a common seller was competent evidence upon the main issue, provided the conviction was based upon sales made at the same place. But as that did not appear from the record itself, it was necessary that it should be shown aliunde. The jury were instructed that they should disregard it “ if they were satisfied he did not keep the liquors complained of in this place.” They should have been instructed to disregard it unless they were satisfied that he did keep the liquors, or make the sales complained of, in this place.

For these two causes we think the verdict must be set aside.

Exceptions sustained.