Commonwealth v. Brothers

33 N.E. 386, 158 Mass. 200, 1893 Mass. LEXIS 265

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1893
• Status: Published

Opinion

Allen, J.

1. No legal or constitutional right of the defendant was violated by the refusal of the presiding justice to postpone the trial, or to adjourn the court to Lowell. Commonwealth v. Hurley, ante, 159.

2. The provisions of Pub. Sts. c. 100, § 12, forbidding licensees to place or maintain screens, blinds, curtains, etc., in such a way as to interfere with a view of the business conducted upon the premises, apply to licensees of the sixth class as well as to all other licensees; and it is provided by St. 1882, c. 259, that the placing or maintaining of any such obstructions shall of itself make the license void. See Commonwealth v. Sawtelle, 150 Mass. 320 ; Commonwealth v. McDonnough, 150 Mass. 504.

3. It was not necessary to insert in the complaint an averment that the provisions of Pub. Sts. c. 100, § 12, as to screens, blinds, curtains, etc., had been violated. Commonwealth v. Barnes, 138 Mass. 511. If further information was wanted, an order for a specification might have been asked for, and granted or refused .in the discretion of the judge. Commonwealth v. Wood, 4 Gray, 11.

4. It was not necessary to aver or prove that the licensing board had required the defendant to remove the blinds and curtains. Commonwealth v. Rourke, 141 Mass. 321.

5. The fact that the windows opened upon private grounds did not render it incompetent to prove that the view throug1 the windows, or through one of them, was obstructed. Commonwealth v. McDonnough, 150 Mass. 504. Evidence of attempted concealment was competent to show both that the license was void and that the business was in other respects illegal.

6. All of the evidence relating to the keeping and use of liquors, and to the glasses, bottles, and vessels in which liquor was or had been contained, was competent for the consideration of the jury. The fact that a particular piece of evidence was not conclusive of guilt did not render it inadmissible.

7. The evidence of finding in the back shop two men sitting with the gas turned down, when taken with other evidence tending to show a recent use of liquor there, was competent.

8. The evidence that the officers called the defendant’s attention to the condition of things in the back shop, and that he made no reply, was competent. The circumstances were sufficiently suspicious to warrant a finding that they naturally called for an explanation. Commonwealth v. Brown, 121 Mass. 69, 80. Commonwealth v. Kenney, 12 Met. 235.

9. It was not necessary to prove that the cider contained more than one per cent of alcohol. St. 1888, c. 219. Pub. Sts. c. 100, § 27. Commonwealth v. Snow, 133 Mass. 575. Commonwealth v. Whelan, 134 Mass. 206, 210.

10. It was competent to prove that at other times near the date of the alleged offence persons were seen going into and coming out from the defendant’s back shop under circumstances which the jury might deem suspicious. Commonwealth v. Finnerty, 148 Mass. 162.

11. The evidence was sufficient to warrant a conviction.

12. If a druggist sells intoxicating liquors in violation of his license, it is not unconstitutional to impose upon him a penalty or punishment, in addition to providing by statute that his license shall be void. Commonwealth v. Kinsley, 133 Mass. 578. Commonwealth v. Kiley, 150 Mass. 325.

Exceptions overruled.