Commonwealth v. Brelsford

36 N.E. 677, 161 Mass. 61, 1894 Mass. LEXIS 127

Opinion

Field, C. J.

The first exception raises the question of the constitutionality of St. 1888, c. 219, so far as it enacts that “any beverage containing more than one per cent of alcohol, by volume, at sixty degrees Fahrenheit, . . . shall be deemed to be intoxicating liquor within the meaning of ’’ Pub. Sts c. 100.

In Commonwealth v. Anthes, 12 Gray, 29, 32, the defendants were indicted, under St. 1855, c. 215, §§ 15, 17, for unlawfully selling intoxicating liquors; the evidence showed sales of lager beer; the statute, by its first section, provided, among other things, that lager beer should be considered intoxicating liquor within the meaning of the statute; the defendant offered to show, by the evidence of experts and those who were accustomed to use lager beer as a beverage, that it was not in fact intoxicating, but this evidence was excluded. It was held to be rightly excluded, and that the provision declaring lager beer to be intoxicating liquor within the meaning of the statute was within the constitutional power of the Legislature. This decision is applicable to the present case, and the exception must be overruled. See Commonwealth v. Blos, 116 Mass. 56. State v. Guinness, 16 R. I. 401. State v. Gravelin, 16 R. I. 407. State v. Intoxicating Liquors, 76 Iowa, 243.

The second exception must be overruled for the' same reason. The issue was not whether the liquor illegally kept for sale was actually intoxicating, but whether it contained more than one per cent of alcohol. Besides, there are grave reasons against giving to a jury liquor to drink for the purpose of determining whether it is or is not intoxicating. Commonwealth v. McShane, 110 Mass. 502. Commonwealth v. Hazeltine, 108 Mass. 479.

The offence of illegally selling intoxicating liquor is distinct from the offence of maintaining a common nuisance by keeping a tenement used for the illegal sale of intoxicating liquor; and proof of the sales on which the defendant has been convicted of the first named offence may be evidence to support a complaint for maintaining such a nuisance. The third exception must be overruled. Commonwealth v. McShane, 110 Mass. 502. Commonwealth v. Hazeltine, 108 Mass. 479.

The fourth exception must be overruled. The certificates were properly admitted in evidence for the purpose of identifying the beer analyzed by the witness as that taken from the defendant’s premises, and this is the only purpose for which they were admitted. Commonwealth v. Bentley, 97 Mass. 551. Commonwealth v. Kendrick, 147 Mass. 444.

It does not appear that the samples of liquor analyzed had been illegally taken from the defendant’s premises by the officers; but if they had been, this fact does not render the evidence that they were found by analysis to contain more than one per cent of alcohol incompetent. This exception must be overruled. Commonwealth v. Dana, 2 Met. 329, 337. Commonwealth v. Welsh, 110 Mass. 359. Commonwealth v. Ryan, 157 Mass. 403. Commonwealth v. Tibbetts, 157 Mass. 519.

Exceptions overruled.