Com. v. Marzynski
| Decision Date | 06 May 1889 |
| Parties | COMMONWEALTH v. MARZYNSKI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 6 1889
HEADNOTES
A.G Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.
Evelyn B. Goodsell, for defendant.
The defendant was prosecuted for having left his shop open upon the Lord's day for the purpose of doing business therein. The evidence showed that he was a tobacconist, and that he kept his shop open, and made a sale of tobacco and cigars, on the day named in the complaint. We understand this sale to have included tobacco and cigars in a single transaction. The defendant did not contend at the trial "that he kept, or had a right to keep, his shop open on the Lord's day for any other purpose than that of selling tobacco and cigars." The jury were instructed, in substance, that keeping one's shop open to sell cigars on the Lord's day would subject him to conviction of the offense named in this complaint, and the principal question in the case is whether that instruction was correct. Under the instruction the jury must have found that the defendant's purpose was to sell cigars, and in this aspect of the case the evidence offered in regard to tobacco was immaterial. The act complained of was keeping open the shop, not making the sale and one question arises under St.1887, c. 391, § 2, which amends Pub.St. c. 98, § 2, by adding a provision that nothing in this last section shall be held to prohibit certain named acts and kinds of business, among which is "the retail sale of drugs and medicines." If, upon the facts of this case, keeping the defendant's shop open to sell cigars was merely keeping it open to sell drugs and medicines, the instruction was erroneous; but if, as a matter of law, it was keeping it open for a purpose other than that of selling drugs and medicines, the instruction was correct.
Ordinarily whether a substance or article comes within a given description is a question of fact; but some facts are so obvious and familiar that the law takes notice of them, and receives them into its own domain. If the proof had been that the shop was kept open for the purpose of selling guns or pistols, it would hardly be contended that the judge might not properly have ruled that the sale of these article was not a sale of drugs or medicines. The court has judicial knowledge of the meaning of common words, and may well rule that guns and pistols are not drugs or medicines, and may exclude the opinion of witnesses who...
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