Commonwealth v. Mcneese

• Decision Date: 06 May 1892
• Citation: 30 N.E. 1021,156 Mass. 231
• Parties: COMMONWEALTH v. MCNEESE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 231

30 N.E. 1021

COMMONWEALTH v. MCNEESE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1892

COUNSEL

Chas. N. Harris, for the Commonwealth.

G.F. Lawton and T.J. Enright, for defendant.

OPINION

HOLMES, J.

This is a complaint for unlawfully exposing and keeping for sale intoxicating liquors. It comes before us on exceptions to the refusal of the judge of the superior court to rule that there was not sufficient evidence to warrant a conviction. The evidence for the government was as follows: The defendant had licenses of the first and fourth classes, and kept a bar. On the day alleged, Sunday, August 30, 1891, at about 7 o'clock in the morning, two officers were admitted and entered at the front of the defendant's premises. At the same time, another, in citizen's dress, climbed the fence in the rear. A man standing at the back door said to him, "You can't get in here to-day," and locked the door in his face. The officer burst in the door. The officers found four pails of beer, containing about twelve quarts each, freshly drawn, under the bar in one of the rear rooms, and a bottle of whisky and a glass upon the bar. There were from seven to nine men in the room, some of whom left on the entrance of the officers. The defendant was not present, but his two barkeepers were there in their shirt sleeves. These facts, unexplained, would warrant the inference that the defendant's barkeepers were intending to sell intoxicating liquors upon his premises on Sunday morning, and evidence that they were prepared, openly, to sell at the defendant's bar, seemingly in the regular course of business, would warrant a finding that they were acting by his authority. Com. v. Gillon, 148 Mass. 15, 18 N.E. 584; Com. v. Locke, 145 Mass. 401, 14 N.E. 621; Com. v. Briant, 142 Mass. 463, 465, 8 N.E. 338.

The defendant offered a plausible explanation of the circumstances in person and by other witnesses who were not impeached, and also testified that he had instructed both his barkeepers, every Saturday night since May 1st, not to sell anything on Sunday. But in this commonwealth there is now no rule that a witness must be believed simply because he is not impeached and tells a plausible story. The jury decide that question uncontrolled. Com. v. Hyland, (Mass.) 28 N.E. 1055.

Exceptions overruled.