Commonwealth v. Gorman

42 N.E. 94, 164 Mass. 549, 1895 Mass. LEXIS 287

Opinion

Holmes, J.

We presume that the implements found upon the defendant’s person were policy slips, although the exceptions do not tell us what they were. There is no contention to the contrary. It seems that they were not found when the defendant was arrested in this case, nor when he was arrested for any violation of law mentioned in St. 1895, c. 419, § 3, and that therefore they are not within the clause of that section expressly making them competent evidence. The objection to evidence of the finding, except in a case brought within that clause, implies that the offence charged cannot be committed at other moments than that of the defendant’s arrest for that, or at least for a similar offence. The ruling last requested rests on the same proposition. But as the offence can be committed at any time, the fact that the defendant had policy slips in his possession at the time of the alleged offence is admissible as the most important part of the offence charged.

The judge instructed the jury that the finding of the implements upon the defendant was not prima facie evidence of his guilt. This was sufficiently favorable to the defendant, and made immaterial the request for a ruling that the statute on this point was unconstitutional. See further Commonwealth v. Williams, 6 Gray, 1, 6. Exceptions overruled.