Commonwealth v. Kozlowsky

• Decision Date: 09 January 1923
• Citation: 138 N.E. 14,243 Mass. 538
• Parties: COMMONWEALTH v. KOZLOWSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 538

138 N.E. 14

COMMONWEALTH

v.KOZLOWSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1923.

Exceptions from Superior Criminal Court, Middlesex County; John F. Brown, Judge.

Zanon Kozlowsky was found guilty of exposing and keeping for sale intoxicating liquors with intent unlawfully to sell them, and he brings exceptions. Exceptions overruled.

One Healy testified that he went to defendant's home on August 17, 1921, and was then asked whether he had a search warrant. Defendant objected, the objection was overruled, and subject to defendant's exception the witness testified that he had such a warrant obtained some time previously. The witness further testified that defendant was not present when he searched the house. Defendant objected to the admission of evidence as to what took place in his obsence, the court overruled the objection, and defendant excepted. At the close of the evidence, defendant moved that the commonwealth be required to elect whether it would stand on the charge that liquor was kept and exposed for sale unlawfully at defendant's residence, or at his place of business. The court ruled that there was no evidence for the jury to consider that any liquor was kept or exposed for sale at defendant's place of business, and the district attorney thereupon withdrew all the evidence bearing upon the seizure at the place of business. Defendant moved for a directed verdict, and requested an instruction that there was no evidence to justify conviction, and excepted to the refusal of such motion and request.Endicott P. Saltonstall, Dist. Atty., of Boston, and Raoul H. Beaudreau, Asst. Dist. Atty., of Marlboro, for the Commonwealth.

Clarence W. Rowley, of Boston, for defendant.

CROSBY, J.

The complaint charges the defendant with exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same. At the close of the evidence the presiding judge refused to direct a verdict of not guilty, as requested by the defendant, and the defendant excepted.

One Healy, a police officer, testified that he knew the defendant, who lived at 106 Berkshire street, Cambridge, and had a store at 692 Cambridge street, about ‘four or five minutes' walk’ from his house; that from the front door of the store on Cambridge street, a bar ran 20 or 25 feet to the rear; that there was a door in back of the bar where there were shelves upon which were bottles containing various kinds of tonic, ginger cordials and other beverages; that under the bar were fixtures for drawing ‘near-beer’ from the cellar, and glasses were kept on the sink; that in the cellar ‘near-beer’ in barrels and half barrels was kept. This witness further testified that on August [243 Mass. 541]17, 1921, he went to the defendant's house with a search warrant which he showed to the defendant's daughter; that before entering he heard the sound of the breaking of glass, and upon entering the kitchen found in a wash tub two broken glass jugs; that he ‘sopped up’ with a handkerchief from the washtub nearly a quart of whisky; that he found a small funnel on top of the washtub; that the odor of the liquor was that of moonshine whisky; and an analysis by the state chemist showed that it contained 36.71 per cent. alcohol; that the contents of the trap leading from the washtub contained, according to analysis by the state chemist, 46/100 of 1 per cent. of alcohol; that while he was at the house the defendant came in, and the witness informed him that he had a search warrant, showed it to him, and told him that he had found there about a quart of whisky; that the defendant said it was his and that he had it for his own use.

One Douglas, a police officer, testified that on August 6, 1921, he searched the defendant's place of business at 692 Cambridge street; that when he entered the defendant's son ran to the rear of the room; that he found no intoxicating liquor there. He further testified that on July 15, at 6 o'clock in the morning, he saw the defendant go from his house to his store carrying under his arm a package wrapped in a newspaper; that 40 minutes later he saw the defendant's son go from the house to the store carrying in like manner a package done up in a newspaper; that on July 30, at 10 minutes after 6 o'clock in the morning, he saw the defendant's wife go from the house to the store carrying a similar package; that on August 3, he saw the defendant go from the house to the store carrying a similar package. There was no evidence as to what these packages contained. The question is whether, upon the foregoing evidence, the jury were warranted in finding that the whisky seized in the house at 106 Berkshire street was kept for sale by the defendant.

The mere possession of intoxicating...