Commonwealth v. Brothers
| Decision Date | 01 March 1893 |
| Citation | 158 Mass. 200,33 N.E. 386 |
| Parties | COMMONWEALTH v. BROTHERS |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was a complaint to the police court of Lowell under chapter 100, Pub.St., for an alleged violation of defendant's license of the sixth class as a druggist to sell intoxicating liquors, not to be drunk on the premises for medicinal, mechanical, and chemical purposes, and upon the terms and conditions described in the license. Before the jury were impaneled the defendant moved the court that the case be postponed to the October term, 1892, at Lowell, which was denied, and thereupon the defendant moved that said court then sitting at Cambridge adjourn to Lowell for the trial of said case, which motion was also denied, to which the defendant duly excepted. The commonwealth claimed that the defendant had violated his license in maintaining the curtains and blinds, as is hereinafter stated, and offered evidence to show the following, to wit: That on March 13 1892, the day laid in the complaint, about 7 to 9 o'clock in the evening, the defendant kept and exposed intoxicating liquor, with intent to sell the same, contrary to law, in his shop and cellar of premises situated at 260 Middlesex street in said Lowell; and two members of the police force of said Lowell testified substantially that they visited the said premises about 8 o'clock on said evening, and, after having inspected the premises in the rear, as is hereinafter stated, they entered the front door of the defendant's store on Middlesex street, and in the front part of the store found the defendant attending to customers. They then passed to the "back shop," so called, around a prescription desk in back part of the front store, through an open door connecting the two rooms, and in the "back shop" found two men sitting, with the gas turned down. One of the officers turned on the gas, and then the officers found several prescription glasses of different sizes standing upon the shelf over a sink. One of the officers smelled of the glasses, and upon examination found that three had been used with whisky and one with rum. That there was nothing else in either glass of the nature of a compound or otherwise. That on the shelf near the glasses was a demijohn with three or four quarts of whisky, and that the shelf there was wet with whisky, and showed marks where glasses had been placed. Then the officers went down cellar, and found there a keg containing about 20 gallons of cider, and on a box near the keg was a glass wet with cider, and the box was wet with cider where the glass stood. They also found two quart bottles of Bass' ale, recently opened, with a little of ale in each bottle, and there was other ale and liquor in bottles and barrels in the cellar. One of the officers on cross-examination testified that he did not know whether or not they were empty. From the cellar the officers returned to the back shop, and as they returned the two men went out. This evidence was contradicted by the defendant.
There were two windows to this back shop. Upon one of the windows were blinds, closed, and a curtain pulled way down. On the other window, near some stairs, there was no curtain, but there were boxes and barrels piled up in the back yard, which obstructed the view to this window to some extent. On the side opposite to the back shop were a tenement house and a livery stable, but no view of any public street could be obtained from said back shop, and said windows were not visible from any public street. The officers then passed back into the front shop where the defendant was waiting on customers. They called the defendant's attention to the prescription glasses, and to the condition of the shelf on which the glasses and demijohn aforesaid were. That the defendant made no reply. That upon request of officers the defendant got his book, showing sales of liquor, but that there were no sales recorded that day. The officers further testified that on said night, previous to their said entry to said front store, they had been in the rear and back yard aforesaid of said premises, and found the blinds closed and curtain drawn down so they could not see into that window, and that they could not see into the other window on account of the boxes and barrels piled against it as aforesaid. The defendant objected to the introduction of any evidence showing or tending to show that the said blinds were closed, or that said curtain was drawn over the window upon two grounds: First, that the complaint did not charge that section 12 of said chapter 100, or any other provision of law relative to blinds or curtains, had been violated by the said defendant; second, that the said section 12 did not apply to licenses of the sixth class; third, because of no proof that the licensing board of the city of Lowell had cautioned, requested, or warned the said defendant as licensee to remove said blinds and curtains, and not permit the same to be placed or maintained upon said windows, or either of them, during the period of said license. The defendant objected to the introduction of evidence as to the alleged condition of said prescription glasses or graduates because they were implements of traffic proper, necessary and indispensable to the legal carrying on of said drug business; and that their alleged condition as found by the officers was not inconsistent, but natural, to the legal carrying on of said business. The defendant objected to the introduction of any evidence as to the cider in the cellar, because the government offered no evidence that the cider contained more than 1 per cent. of alcohol. The defendant further objected to the evidence of the officers calling the attention of the said defendant to the alleged condition of said graduates, and the shelf on which they stood, because said officers testified that the defendant made no reply to the said alleged remark by the...
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