Commonwealth v. Holmes

• Decision Date: 29 November 1875
• Citation: 119 Mass. 195
• Parties: Commonwealth v. John Holmes
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 195

Commonwealth v. John Holmes

Supreme Court of Massachusetts

November 29, 1875

[Syllabus Material]

Bristol. Complaint to the First District Court of Bristol, alleging that the defendant, at Mansfield, on August 14, 1875 "unlawfully did sell to one William Tilson, also to one William G. Tufts, also to one Curtis M. Brown, also to one Charles James, also to one Alden Fuller, also to one Willard A. White, also to one Enos L. Williams, also to one Harvey H Barrows, intoxicating liquor, he the said John Holmes not having then and there any license, authority or appointment according to law to make such sale, against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided."

The defendant moved to quash the complaint on the following ground: "More than two separate and distinct offences are set forth in the same count in the complaint. Two or more counts describing different offences are set forth in the same complaint, not depending upon the same facts or transactions, and there is no averment that they are different descriptions of the same act."

This motion was overruled, the defendant was tried and found guilty, and appealed to the Superior Court.

The record of the District Court, after reciting the allegations of the complaint, and stating that the defendant pleaded not guilty, proceeded as follows: "And now, after a full hearing and examination in said case, it appears to said court that said John Holmes is guilty. It is therefore considered and ordered by said court that said defendant, for the offence aforesaid, pay a fine of fifty dollars to the use of the county of Bristol, and costs of prosecution taxed at eighteen dollars and five cents, and that he stand committed until said sentence be performed. From which sentence the said John Holmes appeals to the Superior Court, next to be holden at Taunton, within and for the county of Bristol, on the second Monday of September next, and recognizes with sufficient sureties in the sum of two hundred dollars to prosecute said appeal there, as the law directs."

At the trial in the Superior Court, before Wilkinson, J., the district attorney entered a nolle prosequi as to all the allegations in the complaint of sales to other persons than White, and the defendant was tried only upon the allegations of the sale to White.

Willard A. White testified that, about the middle of May, 1875, in a room in the defendant's house, he bought whiskey of the defendant's son, John B. Holmes, and paid him for it that one Weaver and one other person was present, and they all drank a glass together.

Weaver testified that he was present on the occasion, testified to by White, and had some liquor with him, which was delivered to them by the defendant's son, but he did not know whether it was paid for or not. Both witnesses testified that they saw nothing of the defendant in or about the premises on that day.

Jacob A. Blake, a deputy sheriff, living in Mansfield near the defendant, testified that the house, where the sale testified to was made, was a public house known as the Eagle Hotel, and kept by the defendant; that there was a sign in front of the house in which were the words "Eagle Hotel, John Holmes;" that in a newspaper at Mansfield he had seen an advertisement of the hotel, in which among other things were the words, "Eagle Hotel, John Holmes, proprietor. John B. Holmes, clerk."

The defendant testified that he was the proprietor of the hotel, that he did not sell or keep liquor for sale, that he had no knowledge of the transaction testified to by White, and if it occurred it was without his authority or consent; that he had liquor in that room; that it belonged to him; that he had it for his own use; that he occasionally treated his friends or guests, but never sold or authorized any one to sell it. On cross-examination, he testified that his son, who was about twenty years of age, acted as clerk, and delivered to him the money received by him at the hotel; but on examination by his counsel, testified that he never delivered to him money which was the proceeds of the sale of liquor, and he had no knowledge of his selling any.

The defendant requested the judge to rule and instruct the jury that this evidence was not sufficient to warrant a conviction. The judge refused so to rule, and the case was submitted to the jury under instructions not excepted to except as above, and a verdict...