Commonwealth v. Helfman

• Decision Date: 02 March 1927
• Parties: COMMONWEALTH v. HELFMAN
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 410

155 N.E. 448

COMMONWEALTH

v.HELFMAN

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1927.

Exceptions from Superior Court, Suffolk County; A. P. Stone, Judge.

Harry Helfman was convicted of keeping and exposing intoxicating liquor with intent to sell, and he excepts. Exceptions overruled.

The court charged in part as follows:

‘You have heard some evidence with regard to the ownership of this store. The ownership of the store is not, however, the deciding matter in this case. It is important as a matter of evidence, and you should give it such weight as you think it deserves upon the question as to whether this defendant was engaged in keeping and exposing liquor for sale. If you should find upon the evidence that this store belonged to the defendant and not to his wife, and the liquor, which it was testified was found in the cash register, belonged to him and that he was keeping it there for the purpose of selling it, that would, of course, be the end of the case.

‘It does not follow, however, that if you found the store belonged to his wife that you would not be justified in finding the defendant guilty. Of course, if the defendant knew nothing about this liquor, and his wife was selling it in this store without his knowledge, he could not be found guilty. If, however, even though the wife owned the store, the liquor was being sold there with the knowledge and consent of the husband, or if he was either actively or passively taking part in the sale, then the fact that his wife owned the store and might also be guilty would not be a reason why you should not find him guilty. Where two people are engaged in an offense of this sort either one or both may be found guilty, although neither is responsible for the whole affair.

‘There is also a rule of law that, where a wife performs criminal acts in the presence of her husband, she is presumed to be acting under his direction and he is responsible for her acts. This is merely a presumption, and may be overcome by evidence. So in this case, if the wife was selling liquor in this store, even if it was her store, and having liquor there for sale, and the defendant was standing by and allowing it to be done, you would have this legal presumption that it was his act, and, if that presumption was not overcome by any other evidence or any other circumstances surrounding it, you might be justified in finding him guilty. It all comes down to this question: Was the defendant, no matter to whom the store belonged, engaged either himself or with his wife, in having liquor there for the purpose of sale? If he was absolutely without knowledge of it or it was done against his will, whether the store was his or his wife's, he could not be found guilty.

‘On the other hand, if he was taking part in it or permitting his wife to do it without objection, then, whether the store was his or hers, there would be evidence upon which you might find him guilty.’D. J. Lyne, Asst. Dist. Atty., of Boston, for the commonwealth.

R. J. Hartford and T. P. Diggins, both of Boston, for defendant.

RUGG, C. J.

[1][2] The defendant was tried on a complaint for keeping and exposing intoxicating liquors with intent to sell contrary to law. A sergeant of police testified that he with another officer went to a dry goods store, where he found the defendant and his wife, in whose presence he read aloud an anonymous letter previously handed him by a superior officer. He was further allowed, subject to the exception of the defendant, to testify from memory what he said to the defendant and his wife, using the letter to refresh his recollection. In this there was no error. It was for the trial judge to determine whether the letter was read as a part of a single conversation with the defendant. His finding in this respect on the present record is not open to review. Commonwealth v. Russell, 160 Mass. 8, 10, 35 N. E. 84. Substantially all of the letter related directly or indirectly to the complaint on which the defendant was being tried. The trifling part which did not was irrelevant and could have done the defendant no harm. The defendant, in reply to the reading of the letter, merely denied that there was liquor in the store at that time and challenged the witness to find any. The charges contained in the letter were of much wider import, and of such other matters there was no denial. The evidence was competent upon the question whether the defendant's equivocal statement respecting the charge amounted to an admission of its truth in whole or in part. Commonwealth v. Brailey, 134 Mass. 527, 530;Commonwealth v. Trefethen, 157 Mass. 180, 197, 198, 31 N. E. 961,24 L. R. A. 235;Commonwealth v. Porter, 237 Mass. 1, 5, 129 N. E. 298;Warner v. Fuller, 245 Mass. 520, 528, 139 N. E. 811;Commonwealth v. Zaidon, 253 Mass. 600, 149 N. E. 550.

[3] The officers found in the store some of the usual accompaniments of illegal sale of intoxicating liquor. As they were about to leave the store, they asked the defendant to open the cash register. At first the drawer did not open fully, the defendant preventing by his body a complete opening. In the compartments at the back designed for holding bills were found bottles containing intoxicating liquor, each separately wrapped. The defendant's motion for a directed verdict in his favor was denied rightly. The finding of bottles of intoxicating liquor in the circumstances described, the disingenuous and crafty conduct of the defendant in opening at first only partly the drawer of the cash register, and not fully until compelled by the officers, the frequent resort of men known to be drinkers to the store ostensibly used exclusively for the sale of dry goods, the presence of the defendant on the premises on numerous occasions and his more...