Commonwealth v. O'Brien

134 Mass. 198, 1883 Mass. LEXIS 261

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1883
• Status: Published

Opinion

Devens, J.

By the Pub. Sts. c. 100, § 1, every person is forbidden to sell intoxicating liquor except as he may be entitled so to do by virtue of that chapter, other sections of which provide for the granting of licenses by the authorities there named, upon the terms and conditions therein stated. No license can be granted which will permit a sale to a minor, and whether the defendant was or was not a licensee, such a sale by him would be a violation of the statute.

The Pub. Sts. c. 100, § 25, reenacting the St. of 1875, c. 99, § 15, provide for the recovery of a penalty for the sale of intoxicating liquor to a minor, by his parent or guardian, in an action of tort. It has been held that, in an action for such penalty, it is not necessary for the plaintiff to allege that the defendant was licensed under the statute; and that, such allegation having been made and the proof having failed to sustain it, it might be treated as surplusage. McNeil v. Collinson, 128 Mass. 313.

It is true that, if the defendant were convicted, upon complaint or indictment, of such a sale, there being an allegation, which was proved, that he was then a licensee, he would be exposed to the additional penalty of a forfeiture of his license and a disqualification to enjoy one for a year thereafter. Pub. Sts. c. 100, § 18. But if the proof had failed to sustain the allegation, and it had been negatived by the jury, as the sale of liquor to a minor, whether made by a licensed or unlicensed person, is unlawful, .a verdict upon the rest of the indictment would have found the defendant guilty of an offence against the statute well described therein, although he might not be subjected thereby to the additional penalty which is imposed upon a licensee. The complaint in the present case was therefore sufficient, and the motion to dismiss it was properly disallowed.

After carefully describing the appearance, dress and manner of the girl to whom the sale was testified by him to have been made, and who was alleged by the complaint to have been a minor, the witness who thus testified was permitted to give his opinion as to her age. This inquiry came fully within the exception to the general rule that witnesses cannot give opinions, by which they have been permitted to express opinions on questions of identity as applied to persons, things or handwriting, and to give their judgment as to the size, weight or color of objects, or their estimate of time or distance. As there is much that cannot be reproduced or made palpable to a jury, the witness is in such matters, in the words of Mr. Justice Endicott in Commonwealth v. Sturtivant, 117 Mass. 122, 133, permitted to give the “ conclusion of fact to which his judgment, observation and common knowledge has led him in regard to a subject matter which requires no special learning or experiment, but which is within the knowledge of men in general.”

Exceptions overruled.