Com. v. Purdy

• Decision Date: 28 February 1888
• Citation: 15 N.E. 364,146 Mass. 138
• Parties: COMMONWEALTH v. PURDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 138

15 N.E. 364

COMMONWEALTH v. PURDY.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1888

COUNSEL

Ely, Gates & Keyes, for defendant.

OPINION

The instruction of the court, to which exception was taken, should not have been given. The complaint properly charged the offense of keeping intoxicating liquor for sale with a continuando. Com. v. Chisholm, 103 Mass. 213; Com. v. Canada, 107 Mass. 405; Wells v. Com., 12 Gray, 326. In such cases time enters into the essence of the offense, and fixes its identity. Com. v. Pray, 13 Pick. 359; Com. v. Wood, 4 Gray, 11; Wells v. Com., 12 Gray, 326. In such cases a conviction is a bar to another complaint for the same offense between the days named, but not to a complaint for such offense before or after said days. Com. v. Connors, 116 Mass. 35. In such cases the evidence must be confined to acts done within the time charged. Com. v. Briggs, 11 Metc. 573; Com. v. Elwell, 1 Gray, 463; Com. v. Adams, 4 Gray, 27; Com. v. Keefe, 7 Gray, 332; Com. v. Gardner, Id. 494; Com. v. Langley, 14 Gray, 21; Com. v. Shea, Id. 386; Com. v. Traverse, 11 Allen, 260. In such cases, if the complaint did not allege the offense in proper form, except on a single day, then the evidence must be confined to acts done on that day. Com. v. Gardner, 7 Gray, 494; Com. v. Foley, 99 Mass. 499.

The evidence of Elmer L. Vedetto was incompetent. The witness does not connect intoxicated persons with the defendant or his store, nor does it appear that he had frequently seen intoxicated persons in the street near said store. The cases relating to this kind of evidence do not support the admission of this testimony. Com. v. Taylor, 14 Gray, 26; Com. v. Higgins, 16 Gray, 19; Com. v. Berry, 109 Mass, 366; Com. v. Maloney, 16 Gray, 20; Com. v. Leighton, 7 Allen, 528; Com. v. Kennedy, 97 Mass. 224; Com. v. Van Stone, Id. 548; Com. v. Dowdican, 114 Mass. 257; Com. v. Shaw, 116 Mass. 8; Com. v. Leighton, 140 Mass. 305, 6 N.E. 221; Com. v. Wallace, 143 Mass. 88, 9 N.E. 5. But this testimony clearly prejudiced the defendant's case.

The evidence of Timothy Ide was incompetent. It was too remote in time. Com. v. Cotton, 138 Mass. 500. The case does not show any continuous course of business, or any circumstance connecting the defendant's admission with the act alleged in this complaint. It does not state when or where the defendant sold intoxicating liquor.

A.J. Waterman, Atty. Gen., for the Commonwealth.

The rulings of the court were correct. The objections to complaint were not seasonably made. Pub.St. c. 214, § 25; Com. v. Donahoe, 130 Mass. 280; Com. v. Goulding, 135 Mass. 552. The evidence of Dowd as to acts of Purdy was clearly admissible, as also the testimony of Vedetto. It was competent to show that the place was one of common resort. Com. v. Wallace, 123 Mass. 400. The presence of intoxicated persons in the street near defendant's house was an item of evidence proper to be considered, in connection with other evidence, under the reason of the rule in Com. v. Kennedy, 97 Mass. 224. The testimony of Timothy Ide was admissible as to statements of defendant respecting sales prior to July, 1886, said time being within two years next prior to making of complaint. Com. v. Dillane, 11 Gray, 67.

MORTON, C.J.

The offense of keeping intoxicating liquor, with intent to sell the same unlawfully, may extend over many successive days, and may properly be charged with a continuando. Com. v. Chisholm, 103 Mass. 213. When a continuing offense is charged, the time alleged is material. It is descriptive of the offense, and fixes its identity, and the evidence generally must be confined to acts done within the time specified, and the defendant can be convicted only for such acts. Com. v. Briggs, 11 Metc. 573; Com. v. Elwell, 1 Gray, 463; Com. v. Dunster, 145 Mass. 101, 13 N.E. 350.

In the case at bar, the offense is charged with a continuando, and the superior court erred in admitting proof of acts of the defendant at times not specified in the complaint, and in ruling that he might be convicted if he kept intoxicating liquor with intent to sell the same at any time within two years before the making of the complaint. Exceptions sustained.