Commonwealth v. Ham

• Decision Date: 18 November 1889
• Citation: 150 Mass. 122,22 N.E. 704
• Parties: COMMONWEALTH v. HAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 122

22 N.E. 704

COMMONWEALTH v. HAM.

Supreme Judicial Court of Massachusetts, Essex.

November 18, 1889

COUNSEL

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

Brickett & Poor, for defendant.

OPINION

DEVENS, J.

It may well be doubted whether, when a party consents to a verdict of guilty, he does not waive all objections, and whether he is not precluded from prosecuting his exceptions to rulings upon questions of evidence. Without, however, discussing this, it is quite clear that the defendant could not thus prevent the court from withdrawing from the jury evidence which, on reflection, it deemed should not be considered. The court having announced before the verdict that it should exclude from the case the declaration made by the workman Brown, and should instruct the jury to disregard it, the defendant has no ground of exception on that account, even if it was originally erroneously admitted. Whitney v. Bayley, 4 Allen, 173; Smith v. Whitman, 6 Allen, 562. It was important to show the intent with which the intoxicating liquor--which, the evidence tended to show, was found concealed in defendant's bottling establishment--was kept. As bearing upon this, the evidence was competent that an employe of defendant had been seen with a jug in the building, running from an officer; that a team often about the defendant's premises, and in possession of the same employe, had been seen delivering jugs at divers places where liquors were sold; and that afterwards there were found in these places jugs, containing intoxicating liquor, bearing defendant's name on cards thereon; that beer teams having defendant's name were seen about town, delivering jugs, and driven by his employes; and that in one instance a similar team, with jugs therein, was seen, driven by defendant himself, about the town. If satisfactory to the jury on this point, it was competent to warrant a verdict against the defendant. Exceptions overruled.