Commonwealth v. Ahearn

• Decision Date: 03 January 1894
• Citation: 160 Mass. 300,35 N.E. 853
• Parties: COMMONWEALTH v. AHEARN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 300

35 N.E. 853

COMMONWEALTH v. AHEARN.

Supreme Judicial Court of Massachusetts, Essex.

January 3, 1894

COUNSEL

William

H. Moody, Dist. Atty., for the Commonwealth.

Charles A. De Courcy and Walter Coulson, for defendant.

ALLEN J.

The form of complaint is that the defendant"unlawfully did keep for sale intoxicating liquors with intent unlawfully to sell the same in this commonwealth."This averment of intent follows the language of the earlier statutes.St.1855c. 215;Gen.St. c. 86, § 29;St.1869, c. 415, § 31.In the statute now in force the words are, "No person shall sell, or expose or keep for sale, spirituous or intoxicating liquor, except as authorized,"etc.Pub.St. c. 100, § 1;St.1875, c. 99, § 1.Whether the averment in the complaint is more minute than is necessary, or whether it imposed on the prosecutor an unnecessary strictness of proof we need not inquire.SeeCom. v. Dana, 2 Metc.(Mass.) 329, 342.

The principal question is whether the evidence was sufficient to warrant a conviction of the offense as charged, viz. a keeping of liquor by the defendant with intent unlawfully to sell the same in this commonwealth.Upon the evidence the jury might have found that one Lucy, who was engaged in the illegal sale of liquors at a place a mile away, kept a quantity of liquors in the defendant's dwelling house, which he(Lucy) was to take away from time to time as wanted for sale at his place of business, and that the defendant was aware of Lucy's purpose, and stored the liquors in his house in order to aid Lucy in carrying it out.There was also evidence that the defendant was in the employment of Lucy at the latter's place of business, and it would seem that an inference might have been drawn that the defendant intended to take a personal part in the sale of the liquors; but this fact was not adverted to in the instructions given in response to the defendant's request, and we therefore omit it.

Without taking the defendant's employment into account, it is nevertheless plain, upon the other evidence, that the jury might have found that the keeping of the liquors was the joint act of Lucy and the defendant, that there was a joint intent on their part that the liquors should be sold by Lucy alone in violation of law, and that the keeping was for the purpose of facilitating such unlawful sale; and, if the complaint had been against them jointly, both might have been convicted.Where several persons are engaged in a common criminal design, with a distribution of the parts, and each takes the part assigned to him, all may be held guilty.Reg v. Bingley, Russ. &R. 446;Reg. v. Kirkwood, 1 MoodyCr.Cas. 304;Reg. v. Dade, Id. 307;1 Russ.Crimes, *27;1 Whart.Crim.Law, §§ 217, 219.Under this rule, one who stores arms in his house or elsewhere, and guards them so that they shall be ready for use in levying war against the government, or one who does the same thing in respect to goods which are to be smuggled, is chargeable with the whole offense, if the same is completed, though his participation therein goes no further.2 Whart.Crim.Law,§ 1792; 2 Burr's Trial, 401.In like manner, where the offense charged is keeping with intent to sell, if a joint keeping is proved, with intent that the sale shall be made by one of the...