Commonwealth v. Savery
| Decision Date | 21 October 1887 |
| Citation | 145 Mass. 212,13 N.E. 611 |
| Parties | COMMONWEALTH v. SAVERY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John R. Thayer, for defendant.
The ruling given did not permit the jury to find the purpose for which the defendant had the beer. Com. v. Goodman, 97 Mass. 117; Com. v. Boynton, 2 Allen, 160. It would require a clear expression of the will of the legislature to justify such a construction of a penal statute as to expose an innocent man to punishment for being unwillingly and innocently in possession of intoxicating liquor. It is not a necessary or reasonable construction of the statute to hold that it subjects to punishment a man who has in his possession intoxicating liquor, through the fault or mistake of another person, but who has not sold any of it and does not intend to, unless he finds it such as he can legally sell. The person must be allowed a reasonable time in which to test the article. The fourth instruction asked for by the defendant should have been given. The instructions given were misleading, and did not fairly state the law.
A.J Waterman, Atty. Gen., for the Commonwealth.
At the argument in this court, the counsel for the defendant conceded that if the defendant kept the beer with the intention of selling it, it was not a defense to show that the defendant believed that the beer contained not more than 3 per centum of alcohol. The keeping of intoxicating liquor for sale without a license is prohibited from consideration of public policy, and the defendant was bound to know the kind and quality of the articles he kept for sale. Com v. Goodman, 97 Mass. 117; Com. v. Boynton, 2 Allen, 160; Com. v. Hallett, 103 Mass. 452; Com. v. Raymond, 97 Mass. 567. The ruling of the court was in accordance with this view of the law, and the first three instructions asked for by the defendant ought not to have been given. There is more difficulty in considering the fourth request. The counsel for the defendant contends that if the defendant kept the beer, not with the absolute intention of selling it, but with the intention of first testing or analyzing it in order to ascertain the amount of alcohol it contained, and then of offering it for sale only if it was found to contain not more than 3 per centum of alcohol, he could not be convicted. It is unnecessary to determine the correctness of this contention. The fourth request is not predicated upon the assumption that the defendant actually had the intention of testing or analyzing the beer before offering it for sale, but upon the assumption that he would have found out that the beer was lager-beer before he attempted to sell it, and that, if he had found this out, he would not sell it. It is implied in the exceptions that what is called "3 per cent. beer" is different from lager-beer, but it is...
To continue reading
Request your trial