Commonwealth v. Patalano

• Decision Date: 02 December 1925
• Parties: COMMONWEALTH v. PATALANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 69

149 N.E. 689

COMMONWEALTH

v.PATALANO.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 2, 1925.

Exceptions from Superior Criminal Court, Middlesex County; A. P. Stone, Judge.

Peter Patalano was convicted of keeping and exposing intoxicating liquor for sale and of maintaining common nuisance, and he excepts. Exceptions overruled.R. T. Bushnell, Asst. Dist. Atty., of Boston, for the commonwealth.

W. R. Scharton, of Boston, for defendant.

SANDERSON, J.

The defendant was convicted of keeping and exposing intoxicating liquor for sale and of maintaining a common nuisance. Specifications filed in the case fixed the place of the alleged offences at 18 South Street, Somerville, and limited the time of their commission to three months before May 8, 1925, the date when the indictment was returned.

[1][2][3][4] The defendant excepted to the exclusion of questions in cross-examination of a witness called by the Commonwealth, asking whether he had any conscientious scruples against making misrepresentations to obtain evidence and whether he had not testified in another case that he had no such scruples. The witness had previously testified in cross-examination in the case on trial that he would not necessarily lie but might misrepresent to get evidence, but that he would not testify falsely under oath. It is not competent to attack the credibility of a witness by proving that he had made misrepresentations on other occasions, Commonwealth v. Kennon, 130 Mass. 39, or that he had low standards of business morality, Holbrook v. Dow, 12 Gray, 357;Commonwealth v. Schaffner, 146 Mass. 512, 16 N. E. 280. After the witness Maguire, called by the Commonwealth, had been examined and cross-examined, the District Attorney was permitted to ask ‘Whether or not there was any time, Mr. Maguire, when you saw the defendant [do] anything in the place that I neglected to inquire of you yesterday?’ His answer, ‘Yes,’ could not have been prejudicial to the defendat; and the testimony of the witness thereafter given apparently went in without objection. But if it be assumed that the exception taken was intended to cover this later testimony, it is without merit. The court might, in its discretion, allow the District Attorney to put in further evidence in redirect examination. The point now made, that the question was not necessarily limited to the period covered by the indictment, is not well taken. The ground of objection was not made at the trial; the inquiry naturally referred to the occasions covered by the testimony in chief and this related to the time stated in the specifications.

[5][6][7] The next exception was to the admission of evidence concerning a raid on May 9, 1925, at 18 South Street, when a large quantity of intoxicating liquors with utensils and equipment was seized and the defendant was found on the premises. When the dates of a continuing offence are fixed in the indictment or by specifications the defendant cannot be convicted unless proven guilty of the crime within the period alleged, and no evidence is to be received unless it tends to prove that offence. Commonwealth v. Purdy, 146 Mass. 138, 15 N. E. 364;Commonwealth v. Ferry, 146 Mass. 203, 209, 15 N. E. 484;Commonwealth v. Runge, 231 Mass. 598, 121 N. E. 499. In such cases evidence of conditions before and after the period within which the crime must be proved is admissible if ‘confined to a time very near the time in question, or * * * connected with it by evidence showing a continuance of the same condition through the entire intervening period. But in this respect much must be left to the discretion of the presiding judge.’ Commonwealth v. Finnerty, 148 Mass. 162, 166, 19 N. E. 215, 217;Commonwealth v. Carney, 108 Mass. 417;Commonwealth v. Matthews, 129 Mass. 487;Commonwealth v. Carney, 152 Mass. 566, 26 N. E. 94. There is nothing inconsistent with this principle in Commonwealth v. Runge, supra. The testimony objected to in the case to be decided was competent as tending to show the defendant's connection with the business and the intent with which the liquors were kept within the specified period. The jury may well have inferred from the nature of the supplies and equipment seized that some of them were on the premises before the last date stated in the specifications. The defendant testified that he had no connection with or control over any business being done at the place where the raid was made; that he did not know the premises were used for illegal purposes; that his wife and brother's wife owned the property and he simply went there to collect the rents. It is clear that the defendant could not be convicted upon evidence showing merely that he committed an offence after the return of the indictment, but the fact that the testimony tended to prove another and distinct offence is not a valid ground of objection to it if it is otherwise admissible. Commonwealth v. Call, 21 Pick. 515;Commonwealth v. Tuckerman, 10 Gray, 173;Commonwealth v. Scott, 123 Mass. 222, 25 Am. Rep. 81;Commonwealth v. Blood, 141 Mass. 571, 6 N. E. 769;Commonwealth v. Feci, 235 Mass. 562, 127 N. E. 602. The judge in his charge properly limited the use which the jury might make of this evidence and ...