Commonwealth v. McCue

• Decision Date: 28 November 1876
• Citation: 121 Mass. 358
• Parties: Commonwealth v. Robert McCue
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 358

Commonwealth v. Robert McCue

Supreme Court of Massachusetts

November 28, 1876

Suffolk. Complaint under the St. of 1875, c. 99, § 1, to the Municipal Court of the city of Boston, averring that the defendant on July 28, 1876, at Boston, "unlawfully did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth."

At the trial in the Superior Court, before Gardner, J., on appeal the defendant verbally moved to quash the complaint "because it did not allege and charge in a correct legal manner an offence, and because it purported and charged an offence unknown to the law." The judge overruled the motion. No motion to quash had been made and filed in the case prior to this motion.

P. A Mahony, an officer, testified that, on July 28, 1876, he had a search-warrant for the premises 291 Federal Street, where the government contended that the defendant exposed and kept liquors for sale, and that on such warrant he made a seizure. The witness was then asked what he seized. It appeared that he had made a return upon the warrant. The defendant objected to any evidence of what was done except by the return. The judge permitted the witness to state what he found.

The government then offered evidence tending to prove that over the store 291 Federal Street there was a sign of "291. Robert McCue. 291." No other evidence had been then offered of McCue's proprietorship; and it appeared that when the officer went to seize, and while there on the premises, the defendant was not there at all. The defendant objected to the introduction of the sign at that stage of the case; but the judge admitted the evidence, the district attorney stating that he proposed to show that the defendant kept the place. Evidence was afterwards offered by the government, tending to show that the defendant was the proprietor of the place. It was contended by the defendant and there was evidence tending to show, that the premises consisted of two stores divided by a partition with a door in it connecting the two stores; that the defendant carried on a grocery store at the part nearest to Summer Street. The defendant offered evidence tending to show that the bar-room was numbered "291 1/2" and the grocery "291." The defence was that the liquors were not intended for sale in violation of law, and also that, on July 1, 1876, one McBurney bought out and leased the bar-room, and ran it on July 28, 1876, and was the person responsible for the bar-room at that date. Both the defendant and McBurney testified to that effect. In reply the government offered the record of a conviction of the defendant on July 13, 1875, of keeping an open shop at 291 Federal Street, Boston, on the Lord's day. To this the defendant objected; but the judge admitted the...