Commonwealth v. Stevenson

8 N.E. 341, 142 Mass. 466, 1886 Mass. LEXIS 349

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1886
• Status: Published

Opinion

.Holmes, J.

The instructions to the jury stated that a sale to a minor by a bar-tender in the course of his master’s lawful business raised a presumption of fact against the master, in stronger terms than in Commonwealth v. Briant, ante, 463; and the exceptions must be sustained for the reasons given in that case. The sale seems to have been to the same person as in Commonwealth v. Briant, and the facts disclose that, by his own statement, the alleged minor was twenty years and eight months at the time the sale took place. This fortifies the suggestion in the former opinion, that the sale might be explained by the barkeeper’s thinking that the minor was of full age, as well as by his master’s having authorized him to sell to minors.

We see no sufficient reason why a person should not be allowed to testify to the date of his birth, if that question is fairly open on the exceptions. The certificate which is made evidence by the Pub. Sts. a. 32, § 11, is hearsay, and no more likely to be accurate than the sworn statement of the party concerned, based, as it must be, on family tradition, and fortified by his knowledge of himself. Hill v. Eldridge, 126 Mass. 234. Cheever v. Congdon, 34 Mich. 296. State v. Cain, 9 W. Va. 559, 570.

Exceptions sustained.