Commonwealth v. Keenan
| Decision Date | 26 February 1889 |
| Citation | 148 Mass. 470,20 N.E. 101 |
| Parties | COMMONWEALTH v. KEENAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.J. Waterman, Atty. Gen., and H.A. Wyman, Asst Atty. Gen., for the Commonwealth.
J.M. & T.C. Day, for defendant.
1. No exception appears to have been taken to the evidence of what the officers found in the defendant's building. The evidence would have been admissible, even if their search had not been authorized by their warrant. Com. v. Welsh, 110 Mass. 359; Com. v. McCue, 121 Mass. 358; Com. v. Henderson, 140 Mass. 303, 5 N.E. 832.
2. There was a window and a mechanical contrivance, by which a man behind the bar in the alleged bar-room could see and exclude persons who entered the front room. In order to show that these were innocent contrivances, evidence was offered that in other years, when the defendant had a license, he had always exercised great care as to the persons to whom, and the times when, he sold. The evidence was properly excluded. The fact of which evidence was offered was too remote in time and character from the fact sought to be established by inference to have any tendency to prove it. Evidence seems to have been admitted that the contrivance was there in previous years, and had an innocent origin.
3. The last exception is to the instruction, with regard to the beer found on the premises, that the finding of an article of merchandise in a place of business where merchandise is for sale would have a tendency to show that it was there for sale. It is now argued that this was an instruction upon a matter of fact. But, from the defendant's request for an instruction to the effect that the presence of the articles would not tend to show that it was there for sale, it is evident that the judge's attention was directed to a different point, and that the exception was to allowing the jury to draw the inference, not to the use of words implying that the inference was the proper one.
It is true, in most cases, that when a fact in issue is to be inferred from facts proved, the court cannot instruct the jury as to probabilities or presumptions of fact, but can only determine that, if the jury draw the inference upon the presumptions which they have learned from their experience of life, they will be warranted, so far as the court knows, and will not be making a mere guess, without adequate data. Doyle v. Railroad Co., 145 Mass. 386, 388, 14 N.E 461; Com. v. Hayes, 145 Mass. 289, 14 N.E. 151; Com. v. Briant, 142 Mass. 463, 8 N.E. 338.
But the phrase "would have a tendency to show," was not a ruling that there was a presumption of fact. It was simply the phrase which is commonly used to characterize evidence which is admissible to prove a fact in issue. See, for example, Com. v. Doe, 108 Mass. 418, 420; Com v. Hayes, 114 Mass. 282; Com. v. Gallagher, 124 Mass. 29, 30. It meant...
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