Commonwealth v. McCabe

39 N.E. 777, 163 Mass. 98, 1895 Mass. LEXIS 46

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1895
• Status: Published

Opinion

Knowlton, J.

1. The evidence of what occurred and what was said in the defendant’s kitchen in her presence was rightly admitted. The jury might well believe that the statement of the four men who were sitting in the kitchen drinking lager beer from bottles should be understood as meaning that they bought the beer of the defendant. The statement should be considered in connection with all the circumstances and with facts of common knowledge, so far as those facts and circumstances tend to throw light on the questions at issue. If the statement is to be believed, it fairly, although not necessarily, implies that they bought the beer there, and not that they bought it elsewhere and carried it to the defendant’s kitchen to drink it. Commonwealth v. Brailey, 134 Mass. 527. Commonwealth v. Funai, 146 Mass. 570.

2. The prosecution of the defendant for keeping this liquor with intent to sell it unlawfully is no bar to a use of the testimony to prove her guilty of keeping and maintaining a common nuisance. Commonwealth v. Hazeltine, 108 Mass. 479. Commonwealth v. McShane, 110 Mass. 502.

3. It was not the duty of the presiding justice to stop the district attorney in his argument from the failure of the defendant to call the witnesses who were in her house at the time referred to. The jury might well believe, from their being found in the kitchen of her dwelling-house, that her relations to them were such that she would be likeljr to know their whereabouts, and that if their testimony could help her she would be able to procure their presence. They might also believe that their relations to her were such that the Commonwealth would not be expected to make an effort to procure their attendance when it had other evidence on which it relied to prove its case.

4. The instruction of the presiding justice in regard to the silence of the defendant when the men claimed the beer as theirs, and said they had bought it and paid for it, was substantially correct, and the defendant cannot justly complain of it. If, instead of saying that silence in the hypothetical case stated in giving the rule was “ tantamount ” to an admission, he had said that it was in the nature of an admission, the charge would have been strictly accurate. The difference in meaning between the two expressions is very slight, and if there was an inaccuracy in this particular it was eliminated from the case when the jury were told that, if they found the facts as contended by the Commonwealth, “ they would give to the circumstance such weight and significance as they thought it entitled to.”

5. The instructions in regard to the failure of the defendant to call witnesses in her favor were correct. There were circumstances from which the jury might well have inferred that the witnesses were within the defendant’s control and could be procured by her. Commonwealth v. Finnerty, 148 Mass. 162. Commonwealth v. Clark, 14 Gray, 367. Exceptions overruled.