Commonwealth v. Perry

• Decision Date: 02 January 1889
• Citation: 148 Mass. 160,19 N.E. 212
• Parties: COMMONWEALTH SAME v. PERRY. SAME v. FROST. SAME v. FLETCHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 160

19 N.E. 212

COMMONWEALTH SAME v. PERRY. SAME v. FROST. SAME v. FLETCHER.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1889

COUNSEL

H.G. Sleeper, for defendants.

A.J. Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

OPINION

KNOWLTON, J.

In each of these three cases the only question is whether there was sufficient evidence to warrant a verdict of guilty. The testimony of the witness Dickerson was substantially the same in each. It tended to show a sale of pure alcohol, made by a clerk of the defendant, in the regular course of the defendant's business. That was sufficient to warrant a finding that the sale was authorized by the defendant. Com. v. Locke, 145 Mass. 401, 14 N.E. 621; Com. v. Briant, 142 Mass. 463, 8 N.E. 338; Com. v. Holmes, 119 Mass. 195.

Under St.1887, c. 431, § 2, a sale of alcohol by a druggist can lawfully "be made only upon the certificate of the purchaser, which certificate shall state the use for which the same is wanted, and shall be immediately cancelled at the time of such sale, in such manner as to show the date of cancellation." Com. v Pierce, 147 Mass._, 16 N.E. 705. If the sale testified to was lawfully made under this statute, the burden of proof was upon the defendant to show it. Com. v. Carpenter, 100 Mass. 204; Com. v. Kennedy, 108 Mass. 292.

In each of the cases there was also evidence from another witness of another sale, which the jury might have found to have been authorized by the defendant, and which, in the absence of explanatory evidence from him, must be deemed to have been illegal. The cases were rightly submitted to the jury, and the entry in each of them must be, exceptions overruled.