Commonwealth v. Donnelly

• Decision Date: 27 November 1923
• Citation: 246 Mass. 507,141 N.E. 500
• Parties: COMMONWEALTH v. DONNELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 507

141 N.E. 500

COMMONWEALTH

v.DONNELLY.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 27, 1923.

Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.

Thomas F. Donnelly was convicted of exposing and keeping intoxicating liquor with the intent to sell, and brings exceptions, raising the question of the admissibility of evidence. Exceptions overruled.

1. Criminal law k395-Evidence illegally obtained competent.

Intoxicating liquor illegally or unreasonably seized is competent in evidence, notwithstanding Const. Mass. Declaration of Rights, pt. 1, art. 14, and Const. U. S. Amend. 4.

2. Constitutional law k266-Introduction of evidence illegally seized does not deny due process of law.

Introduction in evidence of articles illegally or unreasonably seized, as permitted by the local practice, does not violate defendant's rights to due process of law, secured by Const. U. S. Amend. 14.

3. Criminal law k393(2)-Defendant held not compelled to furnish evidence against himself.

Introduction in evidence of intoxicating liquor claimed to have been illegally and unreasonably seized while in the hands of defendant held not to compel defendant to furnish evidence against himself contrary to Const. Mass. Declaration of Rights, pt. 1, art. 12.

Arthur K. Reading, Dist. Atty., and Robt. T. Bushnell, Asst. Dist. Atty., both of Boston, for the Commonwealth.

Joseph P. Donahue and Charles A. Donahue, both of Lowell, for defendant.

RUGG, C. J.

This is a complaint charging that the defendant exposed and kept intoxicating liquor with intent to sell the same contrary to law. G. L. c. 138, § 2. There was ample evidence tending to support the charge. Officers with a search warrant entering the store of the defendant found him near an open window holding in his upraised hand a package through which protruded the neck of a bottle. The officers seized the package, which was found to contain two bottles of intoxicating liquor. The single exception is to the admission in evidence of the bottles thus obtained.

[1] They were admissible in evidence. That was settled by Commonwealth v. Welsh, 163 Mass. 372, 40 N. E. 103, in an opinion by Mr. Justice Holmes. That decision was reaffirmed with full review of cases in Commonwealth v. Wilkins, 243 Mass. 356, 138 N. E. 11. The arguments of the defendant based on article 14 of the Declaration of Rights of the Constitution of Massachusetts and on article 4 of the Amendments to the Constitution of the United States, are fully disposed of by these decisions.

[2] The defendant argues that the introduction of this evidence violated his rights to due process of law secured by the Fourteenth Amendment to the United States Constitution. There seems to us to be no foundation for this contention. No question is raised on this record as to deprivation of the defendant of his property in the intoxicating liquors. The rules of evidence prevalent in this commonwealth permit the use of competent evidence even though it may have been obtained unlawfully. The same rule of evidence obtains even though the illegality in obtaining the evidence may have been the violation by some police officer of the constitutional guaranty against unreasonable search. That all was pointed out after discussion and review of decisions to the contrary by courts of the United States in Commonwealth v. Wilkins, 243 Mass. 356, 138 N. E. 11.

The case at bar is not against the officer who made the illegal seizure, nor an attempt to recover the property so seized. It does not involve the defendant's constitutional right to his property, or to security against unreasonable search. The only question here presented relates to the competency of evidence because of an informity in the legality of the means by which it was secured. Courts differ in their views as to the admissibility of evidence so obtained.

The defendant has been tried according to the established law of this commonwealth.

‘It was said by Mr. Justice Gray in Central Land Co. v. Laidley, 159 U. S. 103, at page 112: ‘When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of a state court does not...