Commonwealth v. O'kean
| Decision Date | 07 January 1891 |
| Citation | 152 Mass. 584,26 N.E. 97 |
| Parties | COMMONWEALTH v. O'KEAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Bristol county CHARLES P. THOMPSON, Judge.
HEADNOTES
Intoxicating Liquors 131
223 ----
223VI Offenses
223k131 Nature and Elements in General.
To a charge of keeping a liquor nuisance it is no defense that the accused did not know, and had no reason to believe, that "hop beer" kept by him contained such a proportion of alcohol as to render its sale illegal.
Complaint for keeping and maintaining a tenement used for the illegal keeping and sale of intoxicating liquor. At the trial it appeared that the defendant kept the tenement in the premises named in the complaint, and kept for sale hop beer, samples of which were sent to the state assayer, and were testified by him to contain 3.55 per cent. and 5.05 per cent. of alcohol at 60 degrees Fahrenheit. The defendant offered to prove that he did not know that the hop beer contained the prohibited quantity of alcohol, or that it was spirituous or intoxicating liquor, and believed that it was not, and did not have any information leading him to believe that it was. The court ruled that these facts if proved by the defendant would not constitute a defense to the complaint, and the jury returned a verdict of guilty.
A.J Waterman and
H.A. Wyman, for plaintiff.
J.W Commings and E. Higginson, for defendant.
If the beer was an intoxicating liquor, the sale of it by the defendant was illegal whether he did or did not know it to be intoxicating, and the tenement used for the illegal sale of it was declared by the statute to be a common nuisance. The fact that the defendant did not know that the beer was an intoxicating liquor, within the definition of the statute would not prevent the place used for its illegal sale from being a nuisance, or relieve the defendant from the penalty prescribed for keeping such nuisance. If the defendant kept the place and used it for the sale of intoxicating beer, the facts that he did not know that the beer contained such a proportion of alcohol as rendered its sale illegal, and that he believed that it was not intoxicating, were immaterial, and would not constitute a defense. Com. v. Savery, 145 Mass. 212, 13 N.E. 611; Com. v. Boynton, 2 Allen, 160; Com. v. Goodman, 97 Mass. 117; Com. v. Uhrig, 138 Mass. 492; Com. v. Hayes, 150 Mass. 506, 23...
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