Commonwealth v. Finnerty

• Decision Date: 02 January 1889
• Citation: 19 N.E. 215,148 Mass. 162
• Parties: COMMONWEALTH v. FINNERTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 162

19 N.E. 215

COMMONWEALTH v. FINNERTY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1889

January 2, 1889

HEADNOTES

COUNSEL

H.F Naphen, for defendant.

A.J Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen. for the Commonwealth.

OPINION

KNOWLTON J.

The defendant testified that she owned the yard and building referred to in the evidence; that she occupied a portion of the building; that there were three "other tenants" there, to whom she let the rooms which they occupied; and that the cellar and yard were used "by all the tenants in the building." There was evidence that empty lager-beer bottles, and ale in bottles, were found in her tenement; and in that connection, testimony was competent that bottles of lager-beer, and bottles of ale, bearing the same marks as those found in her tenement, were found buried in different places in the yard, and that another bottle of ale marked like the others, and also a pick and a shovel were found in the cellar. As bearing upon the question whether these bottles belonged to her, the jury might properly consider the evidence that no intoxicating liquor was found in searching the premises occupied by her tenants, while, in the portion of the building occupied exclusively by her, other bottles like these were discovered. Com. v. Pierce, 107 Mass. 487; Com. v. McCullow, 140 Mass. 370, 5 N.E. 165; Com. v. Gallagher, 124 Mass. 29; Com v. Shaw, 116 Mass. 11.

The testimony as to the persons seen going into and coming out of the defendant's premises may be considered--First, in reference to the kind or quality of the evidence; and, secondly, in reference to the time to which it relates. It has often been held that "if intoxicated persons are seen at a place, or coming from a place, that is evidence upon the question whether intoxicating liquor is kept for sale there. So of people going in and out of a shop at all hours of the day and evening, and carrying in and out jugs and demijohns. Com. v. Maloney, 16 Gray, 20; Com. v. Taylor, 14 Gray, 26; Com. v. Kennedy, 97 Mass. 224.

And we cannot say that, even without evidence of intoxication, or of carrying jugs and the like, persons may not be seen going to and from a place in such numbers, at such times, and under such circumstances, as to thereby furnish evidence proper to be considered, in connection with other circumstances, as indicating that intoxicating liquors are sold there. Whether the evidence objected to in this case was of any significance does not appear. The witnesses stated the number of persons and the occasions. These may have been such as to indicate that the persons were there as frequenters of a drinking place, and not as ordinary visitors of a family or as patrons of a grocery store. It is not shown that the evidence was incompetent as to substance. It was objected to as covering a period three weeks after the day to which the principal evidence related, which was the day before the complaint was made. It is clear that the defendant could not be convicted upon evidence showing merely that she committed an offense after the making of the complaint. Evidence could not properly be introduced for the purpose of showing that, either as a substantive fact, or as furnishing an argument that she was probably guilty of the offense named in the complaint, because she had committed another like it. Com. v. Jackson, 132 Mass. 16. But the illegal keeping of intoxicating liquor with intent to sell it, like keeping a nuisance, is a continuing offense, which may extend over a long or a short period of time. Com. v. Purdy, 146 Mass. 138, 15 N.E. 364. If attention is directed to any point of time during the keeping, there is a probability, from the very fact of keeping then, that the same condition has existed from some previous time, and will continue for some time into the future; and so, as to offenses which are in their nature continuing, evidence has often been received of a condition a little before or a little after the time within which the offense must be proved. And this rule has been...