Commonwealth v. McCluskey

• Decision Date: 27 November 1877
• Citation: 123 Mass. 401
• Parties: Commonwealth v. James McCluskey
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 401

Commonwealth v. James McCluskey

Supreme Court of Massachusetts

November 27, 1877

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Bristol. Indictment on the Gen. Sts. c. 87, §§ 6, 7, in two counts, each count alleging that the defendant on January, 1, 1877, and on divers other days between that day and the day of finding the indictment, did keep and maintain a certain tenement in New Bedford, for the illegal sale and illegal keeping of intoxicating liquors, said tenement being then and there a common nuisance.

At the trial in the Superior Court, before Brigham, C. J., it appeared that the two counts were for separate offences, and referred to separate buildings, and the defendant requested the judge to direct that he be tried separately upon each count. But the judge directed that the trial proceed upon both counts together.

It appeared in evidence that the tenement referred to in the first count was the lower floor of a building No. 4 Pearl Street, which was fitted up as a saloon for the sale of liquor, with a bar and other paraphernalia of the trade; and that this saloon, so fitted up, was used and much resorted to for the illegal sale and keeping of intoxicating liquors, the defendant being concerned in keeping the same during the time covered by the indictment.

The tenement referred to in the second count was a building on the corner of Third Street and Pearl Street, and the evidence on that count was as follows: The building itself was a house occupied by three families, and was on the same side of Pearl Street as, and the next house east from, No. 4. A porch extended westerly from the corner house to within a few feet of No. 4; the door of the porch being about twelve or fifteen feet distant from the back door of No. 4, which back door opened directly into the yard from the bar-room.

There was no fence between the two buildings, the yard was common to both, and there was no fence upon Pearl Street. On the Third Street side was a gate in the rear of the corner house, which gate was used in common by the occupants of both houses. Two witnesses testified to a sale of liquor in No. 4, which they entered by this gate on Third Street through this back door. There were two seizures of liquors made, during the time covered by the indictment, by the police of the city, upon search-warrants, in the corner building. The first was of a considerable quantity of various kinds of liquors contained in jugs, bottles and demijohns from a closet in the porch; and the other, some time afterwards, of a variety of liquors, contained in six jugs, from a room in the cellar. The door leading from the yard into the porch was on each occasion found unlocked; but the closet was locked and was broken open by the officers. The cellar was under the main building and was reached by a door from the porch, which was not locked, but the room in the cellar was locked and was broken open by the officers. In the room in the cellar were also found a hand pump, and half pint, pint and quart measures, and tunnels, which had been recently used. The porch contained a pump and implements for washing, such as a bench and tubs, &c., and nothing more; and the closet, which was about four feet square in a corner of this porch, contained nothing but the liquors found. The porch communicated with the cellar, with the main part of the house, and with the second story, but not with the third story.

One France, who owned the building and lived in the second story, testified that she let the first floor to one Mathews, and that all the families in the house had the privilege of the porch for water and for washing; and that she knew nothing whatever of any liquor found in the porch; and did not know any was there; she was not inquired of relative to the cellar or the liquor found there. Mathews testified that he hired the first floor with the privilege of the porch, and the privilege of using a room for storage of wood and coal in the cellar when the liquors were found; that he had such a room kept locked, having fuel in it, but no liquors; that the room in the cellar in which the liquors were found had no fuel in it, and was locked, and that it was not the same room used by him; that the porch was never locked, and was common to the whole house, and the pump in it was much visited by all the neighbors; and that he knew nothing whatever of any liquors found in the porch or in the cellar, and did not know any were there. No other occupant of the house was called to testify in relation to the matter. Several officers testified that they had seen the defendant drive up to the gate on Third Street many times, and take from the wagon and carry into the gate jugs, and sometimes demijohns, but whether he carried them into the corner house or into house No. 4, they could not say in any case, the back doors of the two houses not being visible to them.

There was no evidence that the defendant, or any one for him, had ever been in the corner building or porch; or had ever been seen going...