Commonwealth v. McCabe

• Decision Date: 28 February 1895
• Citation: 39 N.E. 777,163 Mass. 98
• Parties: COMMONWEALTH v. MCCABE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 98

39 N.E. 777

COMMONWEALTH v. MCCABE.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1895

The bill of exceptions is as follows: "This was a complaint appealed to this court, charging the defendant with keeping and maintaining a liquor nuisance between the 1st day of April and the 27th day of December 1893.The only witnesses in the case were three police officers of the city of Somerville, two of whom testified that on the 29th day of April, 1893, they visited the tenement occupied by the defendant, and in the kitchen found four men sitting with bottles of lager beer, out of which they had been drinking; that the defendant was also in the room; that the officers took the bottles and beer away from the men, and the men objected to letting the officers have them, and said to the officers, in the hearing of the defendant, that they had bought and paid for the beer, and it was theirs, and the officers ought not to take it. To this testimony the defendant duly objected, and it was admitted subject to exception. The officers also testified to finding a large quantity of intoxicating liquors on the premises, and, because of the liquor found on that date, the defendant was complained of, in the district court at Somerville, with keeping liquors with intent to sell, and that on that charge the witnesses testified with reference to what took place on April 29, 1893, the same as in the present case, and that that case for keeping and maintaining with intent to sell was now pending in the superior criminal court at Middlesex. Two officers testified that on the 27th day of December, 1893, they visited the premises aforementioned occupied by the defendant, a tenement, and there found in the room nine quart bottles of whisky, covered over, which they seized. One of the officers testified to seeing eight or ten men, at different times, going in and out from the premises and that the premises were occupied by three tenants, of which the defendant was one; her part of the building however, being separated from that occupied by the other tenants. The defendant herself did not testify, nor offer any evidence, and the government offered no other evidence. The defendant asked the court to rule that all the testimony of the officers which applied to the 29th day of April, 1893 because it was the subject of another complaint, then pending, should not be considered by the jury as a part of this case. The court declined so to rule, and the defendant excepted. The counsel for the government, in arguing the case, urged that the evidence as given by the officers was true, and that, if it was not, the defendant, as far as appeared, could have summoned the four men found on her premises to show that the evidence was not true. The counsel for the defendant, interrupting the district attorney objected to this argument, and claimed that until it appeared that the four men referred to were under the control of the defendant, or were so that she could produce them, and that they knew about the case, no such inferences could be drawn against her; and that the government, upon the evidence, was as much under obligation to produce such witnesses as the defendant. The court declined to stop the district attorney in his argument, and the defendant excepted. The counsel for the government also argued to the jury that, if the government was under any obligation to produce such witnesses, he would explain it by saying that, they being friends of the defendant, it would not be safe for the government to summon them, as they would favor the defendant, and not the government, to which the defendant objected, and the court did not stop counsel for the government in his argument in that line, and the defendant excepted. The counsel for the government further argued to the jury that on the occasion of April 29, 1893, when the officers went to the premises of the defendant, and there found the four men with lager beer, her silence at the time the men said they bought the liquor, and it was theirs, was an admission of the truth of the statement made by these men that the liquor was theirs, and they bought it, and she sold it to them. On this part of the case the presiding judge called the attention of the jury to the evidence relative to the silence of the defendant when present when the men claimed the beer as theirs, and said they had bought and paid for it, and instructed...