Commonwealth v. Acton

• Decision Date: 29 November 1895
• Citation: 42 N.E. 329,165 Mass. 11
• Parties: COMMONWEALTH v. ACTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 11

42 N.E. 329

COMMONWEALTH v. ACTON.

Supreme Judicial Court of Massachusetts, Bristol.

November 29, 1895

COUNSEL

Andrew J. Jennings, for the Commonwealth.

James T. Cummings and Charles R. Cummings, for defendant.

OPINION

LATHROP, J.

This is a complaint for keeping and maintaining a certain tenement in Fall River, used for the illegal sale, and illegal keeping for sale, of intoxicating liquor. While several exceptions were taken at the trial, the defendant now relies upon two which we proceed to consider.

1. A police officer, named McCarthy, who had testified to certain facts tending to show that the tenement in question was under the control of the defendant, and who, with other officers, had taken from the premises a pail, certain bottles, and some beer, was asked, on cross-examination whether a copy of a notice was in his handwriting. The defendant offered to prove that the copy was in the handwriting of the witness. The defendant also offered the copy in evidence to show ownership, and to affect and control the evidence of the witness. The presiding judge excluded the question, rejected the offer of proof, and excluded the copy of the notice. The notice in question was issued under Pub.St. c. 100, § 34, by the clerk of the Second district court of Bristol, "to Patrick Acton, and to all other persons claiming any interest in about one-half gallon of strong beer and one pail." It also described the liquor as having been seized at the dwelling house, store, and place of said Patrick Acton. The copy of the notice was attested by McCarthy. The defendant does not now contend that the copy of the notice was admissible to prove ownership, but contends that it was admissible to contradict McCarthy. But we are of opinion that it was not admissible for this purpose. While McCarthy gave the information to the clerk on which the notice was issued, there was no offer to show what this information was. The most that can be said of the notice is that, in the opinion of the clerk, upon information received, Patrick Acton was the person responsible. But this is an immaterial question in this case. The fact that McCarthy made an official copy of the notice, and attested it as a true copy, does not make the statements contained therein his statements.

2. The only other exception argued is to the refusal of the court to instruct the jury that, on all the evidence, the defendant should be acquitted; that the policemen had no authority to make the raid; and that the defendant's conduct at the time, in hiding a bottle of beer, should not be considered against her, as tending to show that she was keeping intoxicating liquors unlawfully. The defendant does not now contend that there was not abundant evidence to warrant a finding that she was...