Commonwealth v. O'Brien

• Decision Date: 15 January 1883
• Citation: Commonwealth v. O'Brien, 134 Mass. 198 (Mass. 1883)
• Parties: Commonwealth v. Bartholomew O'Brien
• Court: Supreme Judicial Court of Massachusetts

134 Mass. 198

Commonwealth v. Bartholomew O'Brien

Supreme Court of Massachusetts

January 15, 1883

Suffolk. Complaint to the Municipal Court of Boston, alleging that the defendant, on August 2, 1882, at Boston "unlawfully did sell intoxicating liquors to a minor, to wit, to a girl, whose name is unknown to said complainant the said girl being then and there under twenty-one years of age, and the said O'Brien not having then and there any license, authority, or appointment, according to law, to make such sale to said minor."

In the Superior Court, the defendant moved to dismiss the complaint for the following reasons: "1. It does not appear in or by the complaint that the defendant was licensed to keep for sale or sell spirituous or intoxicating liquors under chapter 100 of the Public Statutes of this Commonwealth. 2. There is no offence fully, formally and substantially set forth in said complaint." Mason, J. overruled the motion, and the defendant excepted.

At the trial, it appeared in evidence that, on the day of the alleged sale, a female of youthful appearance and in stature about as high as an ordinary man's shoulder, clad in a hat, shawl and short dress reaching to the knee, entered the place of business of the defendant, and purchased from him some ale, for which she paid, and which she carried away in a pail under her shawl.

The complainant, a witness called by the government, was asked by the government, after testifying as above to the appearance of the female, "What in your opinion was the age of this girl?" The defendant objected, but the judge overruled the objection, and the witness answered, "Not over thirteen years of age." This was all the evidence on the question whether said female was or was not a minor.

The defendant asked the judge to instruct the jury that the government was bound to prove, beyond a reasonable doubt, that the person to whom this sale was alleged to have been made was at the time a minor, and under the age of twenty-one years.

The judge instructed the jury as requested; and further instructed them that the evidence of the complainant as to his opinion of the age was evidence competent for them to consider and weigh on this point. To this ruling the defendant excepted.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions overruled.

C. F. Paige, for the defendant.

C. H. Barrows, Assistant Attorney General, (G. Marston, Attorney General, with him,) for the Commonwealth.

Devens J. Field & W. Allen, JJ., absent.

OPINION

Devens, J.

By the Pub. Sts. c. 100, § 1, every person is forbidden to sell intoxicating liquor except as he may be entitled so to do by virtue of that chapter, other sections of which provide for the granting of licenses by the authorities there...