Commonwealth v. Ewig

• Decision Date: 20 October 1887
• Citation: 13 N.E. 365,145 Mass. 119
• Parties: COMMONWEALTH v. EWIG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 119

13 N.E. 365

COMMONWEALTH v. EWIG.

Supreme Judicial Court of Massachusetts, Hampden.

October 20, 1887

COUNSEL

J.E. Dunleary, for defendant.

At the trial the judge, among other things, charged the jury that "if this [[the joint purchase and distribution of liquor] is a mere device to cheat the government out of its license fee, and prevent the due execution of the law, it is not a protection." The defendant complains that this was equivalent to the charging that, if the members of a club adopted this means of obtaining liquor, because they thought thereby to avoid the necessity of a license and the payment of a fee, the defendant was guilty, when, as a matter of law a citizen has a right to adopt a course to avoid the necessity of paying a license fee. The jury were practically instructed that, if "two persons buy a gallon of liquor and divide it among themselves," and if this course is a device to cheat the government out of its fee, they are guilty in a proceeding of this kind. The defendant contends that the law does not prohibit the dispensing of liquors without a fee, (Com. v. Smith, 102 Mass. 144;) and the defendant is not being tried for cheating the government but for selling liquor. The only question before the jury was, did the transaction or "device" amount to a sale? The case presumed in the charge is manifestly not a sale. Com. v. Intoxicating Liquors, 115 Mass. 155. The charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the facts as they find them from the evidence. Railroad Co. v Wetmore, 19 Ohio St. 110.

E.J. Sherman, Atty. Gen., for the Commonwealth.

The evidence to which defendant objected was competent and properly admitted, under appropriate instructions limiting its use and effect. Com. v. Dearborn, 109 Mass. 368; Com. v. Stoehr, Id. 365; Com. v. Kelley, 116 Mass. 341. All of the instructions asked for by the defendant were given by the presiding judge, and were sufficiently favorable to the defendant. In view of the fact that the government claimed that the club was founded in fraud and deceit, and was gotten up to cover the illegal acts and transactions of the defendant, the instruction to the jury, who were to pass upon that question, is not inconsistent with the ruling that the intent with which the liquors are bought or sold is immaterial. The ruling of the judge is directed and applies to the whole scheme. If this scheme, or alleged club, is but a form or device apparently legal, but the substance of which is within the prohibition of the statute, then the defendant does not act with impunity. The evidence being conflicting as to the nature of the alleged club, claimed by the government to be only such in name, with devices and forms intended to deceive and defraud, and, by the defendant, to be duly organized and properly conducted, it became a pertinent inquiry whether the alleged club was really a bona fide organization, with limited membership, and not open to any person at his pleasure, or whether it was only a form and name, adopted to cheat the government out of its license fee, and prevent the due execution of the law. The case differs from Com. v. Pomphret, 137 Mass. 564, in that in that case the testimony of the defendant to the facts was admitted to be true, while in the present case they are in dispute. See opinion, FIELD, J., in Com. v. Pomphret, supra. In Com. v. Smith, 102 Mass. 144, it was decided that the court had no right to rule, as matter of law, that such an arrangement as constituted the facts in that, as well as the present, case was an evasion of the law, but that it was a question for the jury, upon all the facts, and under appropriate instructions. See Graff v. Evans, 8 Q.B.Div. 373; Seim v. State, 55 Md. 566; Rickart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; State v. Mercer, 32 Iowa, 405; Martin v. State, 59 Ala. 34.

OPINION

KNOWLTON J.

The contention between the parties upon these exceptions relates solely to the interpretation of the judge's charge. The defendant excepted to the qualification of the last instruction which he had requested. He contends that the jury must have understood the judge as saying that, if several persons buy liquor and divide it among themselves, even though the transaction is real and genuine, and do...