Commonwealth v. Goldberg

• Decision Date: 27 June 1944
• Citation: 55 N.E.2d 951,316 Mass. 563
• Parties: COMMONWEALTH v. JOHN R. GOLDBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 563

55 N.E.2d 951

COMMONWEALTH v. JOHN R. GOLDBERG.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1944

October 4, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN & RONAN, JJ.

Contraceptive. Advertising.

A finding of a violation of the provisions of G. L. (Ter. Ed.) c. 272,

Section 21 prohibiting the advertising of contraceptives was warranted by evidence and inferences therefrom that the proprietor of a novelty shop had for sale therein articles adapted to use as contraceptives, and that he placed on the counter in the shop, for his customers to take, cards containing statements which referred to such articles and were of such a nature as to tend to further the purchase of the articles by customers and to show an intention of the proprietor that the articles be used as contraceptives.

COMPLAINT, received and sworn to in the Municipal Court of the City of Boston on October 8, 1941.

On appeal to the Superior Court, the case was heard by Higgins, C.J. W. I Schell, for the defendant.

J. J. Sullivan Assistant District Attorney, (F.

T. Doyle, Assistant District Attorney, with him,) for the Commonwealth.

FIELD, C.J. A complaint was issued from the Municipal Court of the City of Boston which charged the defendant with advertising "to wit, certain instruments, to wit, certain condoms, the same to be used for the prevention of conception." Upon appeal to the Superior Court the complaint was tried before a judge sitting without a jury. At the conclusion of the evidence the defendant "moved that a verdict be directed in his favor." The motion was denied and the defendant was found guilty. The defendant excepted.

The only testimony offered against the defendant was the testimony of a sergeant of police. He testified that the defendant was then, and had been previously for eight years, in the business of operating a "novelty store" under the name of "Jack's Shop," "wherein trick cards, rubber goods and the like are sold; that among other things sold were condoms; that the witness had received three cards and a pamphlet from the office of the superintendent of police"; that the witness had a talk with the defendant on this subject matter as a result of the information received; and that three days later "the witness told the defendant that the police had received a complaint that the defendant was passing out cards advertising rubber goods to prevent conception; that the defendant denied it, and said: `I left such cards on the counter to have customers pick them up'; that the witness then showed the defendant three cards and a pamphlet . . . which the witness had received from the office of the superintendent of police, and the defendant said: `I have not been giving them out, customers are free to take them if they want to.' On cross-examination, this witness testified that in response to a question from the witness, the defendant said: `I sell the rubber goods to prevent disease.'" The cards and pamphlet were introduced in evidence and are made a part of the bill of exceptions. No "further testimony or evidence material to the complaint was offered."

An exception does not lie to the finding of the judge. Federal National Bank v. O'Connell, 305 Mass. 559 , 564-565. Moreover, since the case was tried before a judge sitting without a jury, the defendant's motion "that a verdict be directed" had no standing as such, but we treat it as a request for a ruling that the evidence did not warrant a finding against the...