Commonwealth v. Brelsford

• Decision Date: 05 March 1894
• Citation: 36 N.E. 677,161 Mass. 61
• Parties: COMMONWEALTH v. BRELSFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 61

36 N.E. 677

COMMONWEALTH v. BRELSFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

March 5, 1894

The gist of the complaint, as shown in the evidence, was that the defendant kept and sold, illegally, a certain beverage known as "dandelion beer," containing more than 1 per cent. of alcohol, and had violated the statute. The defendant asked the court to rule that what is known as the "more than 1 per cent. act" is unconstitutional and void, and that said act is therefore not binding, and that the defendant violated no law of the commonwealth as set out in the complaint and shown in the evidence. The defendant objected to the introduction of any evidence under said act, or any act of which that is an amendment, and relating to the more than 1 per cent provision. The defendant offered to show (by samples of the said beer) that it was not intoxicating, and asked that the same be given to the jurors for them to taste and test as to its being or not being an intoxicating liquor, but the court rejected the offer. The defendant offered to prove that the samples offered in evidence were identical in every respect with the beer taken in October, 1892, by samples from the defendant's premises by the officers, and which the commonwealth offered evidence from the state assayer and inspector of liquors tending to show were intoxicating liquors. The court rejected the offer, and the defendant duly excepted thereto. It appeared that on August 3, 1892, the defendant was convicted in the Lowell police court of illegally selling such dandelion beer, was fined, and paid the fine and costs. It also further appeared that the offense of the defendant under the prior complaint was committed on July 23, 1892. The defendant objected to the introduction of any evidence by the commonwealth of any of the defendant's acts complained of under said complaint, and committed by the defendant on or about July 23, 1892, and also objected to any evidence of acts complained of under said complaint of July 23, 1892; and claimed that the defendant could not be twice punished constitutionally for the same offense. The complaint on trial in the superior court ran from May 1, 1892, to November 1, 1892. The state assayer was called as a witness by the government, and allowed to testify, only, as an expert in chemistry, the result of his analysis of the beer taken from premises of defendant between May 1 and November 1, 1892. For the purpose of identifying the beer thus analyzed by the state assayer as the beer taken from the premises of the defendant, the government introduced certain certificates. The blank certificates had been wrapped around the bottles containing the beer to be analyzed before the same were sent to the state assayer, and the blanks had been removed therefrom and filled by the assayer at the time of his analysis, and set forth the results of the same. The defendant objected to the admission of these certificates, but the court admitted them solely for the above-mentioned purpose, and the defendant objected. It appeared in evidence that the said samples were taken from the cellar in the defendant's dwelling house against the defendant's protest and objection, under an alleged search and seizure warrant; that no store or place of business was then kept in the dwelling house. No liquors were then taken therefrom but the said samples. The defendant objected to any evidence from the state assayer as to his analysis of the said samples, because they were not legally taken by the said officers. The court overruled the objection, and permitted said certificates in evidence for the purposes above set forth, and the said assayer to testify that his analysis of said samples showed more than 1 per cent. of alcohol when thus then and there taken, the analysis being made about four days after said seizure.

COUNSEL

Fred N Wier, for the Commonwealth.

Jerome F....