Commonwealth v. Pomphret

• Decision Date: 27 October 1884
• Citation: 137 Mass. 564
• Parties: Commonwealth v. William Pomphret
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 564

Commonwealth v. William Pomphret

Supreme Court of Massachusetts

October 27, 1884

Hampden. Complaint alleging that the defendant, on September 27, 1883, at Springfield, kept intoxicating liquors with intent unlawfully to sell the same in this Commonwealth. Trial in the Superior Court, before Knowlton, J., who, after a verdict of guilty, and with the consent of the defendant reported the case for the determination of this court, in substance as follows:

It appeared in evidence, that, on the day named in the complaint, a quantity of intoxicating liquors was seized under a search warrant at the house occupied by the defendant. The defendant testified, and, for the purposes of the trial, his testimony was admitted to be true, that he was a member of a club of about one hundred and fifty persons which was organized several weeks before the seizure, for the purpose of furnishing its members with refreshments, and which had as officers a president, secretary, treasurer, and executive committee, and which employed him as steward, and paid him a certain sum per month for his services, and for the use of the room in which said liquors were found; that in accordance with the terms of that organization, each member, upon joining the club, paid to the treasurer an admission fee of one dollar, and received a card certifying his membership; that the money so obtained was used in buying a variety of liquors in the name and as the property of the club; that a quantity of checks was printed, each representing the sum of five cents; that it was the defendant's duty as steward to furnish these checks to individual members in such numbers as were called for, and to receive pay for them at the rate of five cents each, to take care of the liquors of the club, to deliver them to the members for drinking in quantities as called for, and to receive the price of them in checks upon delivery; that the liquors seized were the property of the club, obtained and designed to be used under the above arrangement, and were in his custody as steward; that he formerly had a license to sell intoxicating liquors at this place, to be drunk on the premises, but had none at the time of the seizure. It also appeared that, at the preceding municipal election in Springfield, it was voted to grant licenses for the sale of intoxicating liquors.

The defendant asked the judge to rule that there was no evidence to warrant a conviction of the offence charged.

The judge declined so to rule; and instructed the jury as follows: "If an association of persons, of whom the defendant was one, owned a quantity of intoxicating liquors, which they kept under an arrangement to furnish them in such quantities as might be required, to be drunk on the premises, to such members of the association as should call for them, in return for checks which represented certain designated values, and which were obtained from the defendant as a steward of the association, and were paid for when obtained at the price which they purported to represent, and the defendant was one of the persons keeping these liquors for said purpose, and was personally in charge of them, furnishing them in return for said checks, the jury may find that said liquors were kept by him for unlawful sale."

If the refusal to rule as requested, and the instructions given were correct, the verdict was to stand; otherwise, the verdict to be set aside, and a new trial granted.

New trial granted.

J. B. Carroll, for the defendant.

E. J. Sherman, Attorney General, for the Commonwealth.

Field, J. C. Allen & Colburn, JJ., absent.

OPINION

Field, J.

The instructions given, in their application to the facts in evidence, do not seem to us to differ materially from the instructions which were held erroneous in Commonwealth v. Smith, 102 Mass. 144, except that, in that case, the court below ruled that the facts supposed "would be a sale by the defendant;" and, in this case, the court ruled that, from the facts supposed, "the jury may find that said liquors were kept by" the defendant "for unlawful sale." This change in the ruling may have been made for the purpose of meeting the suggestion found in the opinion in Commonwealth v. Smith, that the arrangement described "may have been a mere evasion of the law," which "would be a question not of law but of fact, and would fall wholly within the province of the jury."

The Legislature, within the limitations of the Constitution, can prohibit under a penalty any acts it sees fit. The meaning of the statutes must be determined by construction, and criminal statutes are to be construed strictly, although the whole scope of the statutes must undoubtedly be considered.

The Legislature, by the Pub. Sts. c. 100, § 1, has prohibited the selling, or exposing or keeping for sale, spirituous or intoxicating liquor, except as authorized in that chapter. It has not undertaken to prohibit the drinking or buying of intoxicating liquor, or the distribution of it in severalty among persons who own it in common. If therefore two or more persons unite in buying intoxicating liquor, and then distribute it among themselves, they do not violate the statute, and the intent with which they do this is immaterial. If they intend in this manner to obtain intoxicating liquor to drink, without thereby subjecting any person to the penalties of the statute, they still act with impunity, because what they do is not prohibited by the statute. The evasion of the law intended in Commonwealth v. Smith is an evasion by means of a form or device which is apparently legal, while the substance of what is done is within the prohibition of the statute.

In that opinion, it is said, "If the liquors really belonged to the members of the club, and had been previously...