Commonwealth v. Ham

22 N.E. 704, 150 Mass. 122, 1889 Mass. LEXIS 33

Opinion

Devens, J.

It may well be doubted whether, when a party consents to a verdict of guilty, he does not waive all objections, and whether he is not precluded from prosecuting his exceptions to rulings upon questions of evidence. Without, however, discussing this, it is quite clear that the defendant could not .thus prevent the court from withdrawing from the jury evidence which, on reflection, it deemed should not be considered. The court having announced before the verdict that it should exclude from the case the declaration made by the workman Brown, and should instruct the jury to disregard it, the defendant has no ground of exception on that account, even if it was originally erroneously admitted. Whitney v. Bayley, 4 Allen, 173. Smith v. Whitman, 6 Allen, 562.

It was important to show the intent with which the intoxicating liquor, which the evidence tended to show was found concealed in the defendant’s bottling establishment, was kept. As bearing upon this, the' evidence was competent that an employee of the defendant had been seen with a jug in the building, running from an officer; that a team often about the defendant’s premises, and in possession of the same employee, had been seen delivering jugs at divers places where liquors were sold, and that afterwards there were found in these places jugs containing intoxicating liquors having defendant’s name on cards thereon; that beer teams having the defendant’s name on them were seen about town delivering jugs, and driven by his employees; and that in one instance a similar team with jugs therein was seen driven about the town by the defendant himself. If satisfactory to the jury on this point, it was competent to warrant a verdict against the defendant.

Exceptions overruled.