Commonwealth v. Certain Intoxicating Liquors

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Morton, J.
• Citation: Commonwealth v. Certain Intoxicating Liquors, 122 Mass. 36 (Mass. 1877)
• Decision Date: 03 January 1877
• Parties: Commonwealth v. Certain Intoxicating Liquors. Robert McCue, claimant

122 Mass. 36

Commonwealth v. Certain Intoxicating Liquors. Robert McCue, claimant

Supreme Court of Massachusetts

January 3, 1877

Argued November 27, 1876 [Syllabus Material]

Suffolk. Complaint on the St. of 1876, c. 162, to the Municipal Court of the city of Boston, alleging reason to believe and belief that certain intoxicating liquors are kept and deposited in a certain building in Boston, "situate in Federal Street, and numbered two hundred and ninety-one and two hundred and ninety-three in said street, in said Boston, in the basement and first story of said building," occupied by the claimant as a place of common resort, with intent to sell the same in violation of law. The warrant issued on this complaint recited the averment of the complaint, and directed the officer "to enter the basement and first story of said building herein above described," and make search, &c.

Robert McCue appeared as claimant, and in the Superior Court, before the case was submitted to the jury, moved "to dismiss the proceedings and all papers therein, because he says they are informal, illegal and insufficient." Putnam, J. overruled the motion. The case was then tried, and a bill of exceptions, in substance as follows, allowed:

To prove that the claimant kept the place referred to, the district attorney put this question to one of the officers who made the seizure, and who testified for the government: "Do you know who kept the place?" The claimant objected to the question, but the judge allowed it to be put. The judge cautioned the witness, in answering it, to state only what he knew of his own knowledge, and what he had seen the claimant do about the place. The district attorney also asked the witness, "Was there any sign over the door, and, if so, what name was on it?" This question was objected to by the claimant, but admitted, and the witness answered, "There was a sign, with the name on it of Robert McCue." Of another witness the district attorney asked this question: "Previously to July 28th, (the day of the seizure,) do you know who was in charge of the premises?" This was objected to by the claimant, but admitted, the judge giving the same caution to this witness as to the other, and the witness answered that the claimant had charge of it; that he had seen him there most every day for the last three or four years, and every other night, -- except when he (the witness) was away on his vacations, which in this case began two or three days before the seizure, and lasted two or three days after, -- behind the bar in his shirt-sleeves, giving out liquor to people, and taking down the shutters in the morning.

The witness testified that the room which was searched, and in which the seizure was made, was the first floor of the building as you go in off the sidewalk, a step or two up from the walk; that there was a shop on this floor, with no room under it, and that it was occupied by the claimant, who lived with his family in the rooms above. The claimant asked the judge to rule that, upon this evidence, the officer had no right, under the warrant, to search the room which he did search, or any room in the premises. The judge declined so to rule.

There was evidence that the building was known and numbered as No 291 Federal Street, and the district attorney contended that the witness had testified that it was numbered 291 and 293. This latter claim was denied by the claimant. The minutes of the judge accorded with the recollection of the claimant, but the judge left it for the jury to...