Commonwealth v. Slavski

Decision Date28 May 1923
Citation140 N.E. 465,245 Mass. 405
PartiesCOMMONWEALTH v. SLAVSKI (two cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Samuel Slavski was found guilty under two complaints of keeping and maintaining a liquor nuisance and keeping intoxicating liquor for sale, and he brings exceptions. Exceptions overruled.

The evidence showed that defendant's family consisted of himself, his wife, two married sons, and three minor sons, and that he had three boarders. On a search of the premises made September 30, 1922, three quarts of ‘moonshine’ were found in a barn in the rear of the house. About 8:25 p. m. on October 11, a police officer who was watching the house saw one O'Gara rap on the kitchen door, whereupon defendant's 17 years old son Simon came out into the yard and passed O'Gara a quart bottle and received some paper money from O'Gara. Defendant was not then at home. There was evidence that between July 30 and October 25, 1922, persons were seen going to and from such premises under such circumstances as to furnish evidence proper for the jury's consideration that intoxicating liquors were sold there, and on the search of the premises mentioned a small tin ‘tunnel’ wet and smelling of moonshine was found in the barn. Defendant objected to going to trial on both complaints, and excepted to the court's ruling, and also excepted to the introduction of evidence of the actions of O'Gara and his son in his absence, to the introduction of the bottle of moonshine and of the liquor found in the barn, to the introduction of certificates of analysis, and to the refusal of the following instructions.

(1) There is no eivdence which would warrant the jury in finding that the defendant made any illegal sale of intoxicating liquor within the period covered by the complaint for a liquor nuisance (No. 7657).

(2) There is no evidence which would warrant the jury in finding that the defendant illegally kept intoxicating liquor for sale, within the period covered by the complaint for a liquor nuisance.

(3) Proof of a single sale of intoxicating liquor is not sufficient to warrant a conviction of keeping and maintaining a liquor nuisance.

(4) On all the evidence in No. 7657 (complaint for liquor nuisance) the jury would not be warranted in returning a verdict of ‘guilty’ and the verdict must be ‘not guilty.’

(5) On all the evidence in No. 7659 (exposing and keeping on October, 11, 1922) the jury would not be warranted in returning a verdict of ‘guilty’ and the verdict must be ‘not guilty.’

(6) There is no evidence in this case that any short quart of moonshine was found in the defendant's possession on October 11, 1922.

(7) There is no evidence in this case that any short quart of moonshine was found on the premises occupied by the defendant on October 11, 1922.

(8) There is no evidence in this case which would warrant the jury in finding that the defendant authorized his son Simon to sell the short quart of moonshine to Patrick O'Gara on October 11, 1922, even if the jury believe Simon did make such a sale to O'Gara.

(9) In order to convict the defendant in No. 7659 the government must prove beyond a reasonable doubt that the defendant kept the short quart of moonshine taken from O'Gara on October 11, 1922, with intent to sell it within the commonwealth and contrary to its laws.’

The defendant also requested the court to give the following instruction:

‘The defendant is not responsible in these cases for any unlawful act of his son Simon unless such unlawful act was done by the direction of the defendant.’Arthur K. Reading, of Boston, and Gardner W. Pearson, Asst. Dist. Atty., of Lowell, for the Commonwealth.

John M. Maloney, of Boston, for defendant.


These are two criminal complaints, one charging the defendant with keeping and maintaining a tenement used as a liquor nuisance at Ayer in our county of Middlesex during the period of three months before the 5th day of October, 1922, and the other charging him with keeping intoxicating liquor for sale contrary to law at said Ayer on the 11th day of Cotober, 1922.

[1] 1. There was no error in requiring the defendant to go to trial on both complaints at the same time. As long ago as 1842 it was said by Chief Justice Shaw to be common practice to include in one inditment several distinct substantive offenses of the same general character, where the mode of trial and nature of punishment were the same and thus to compel a defendant to a single trial, subject always to the duty and power of the court to order the prosecutor to elect on which of the counts the defendant shall be brought to trial if necessary for the protection of his substantial rights. Carlton v. Commonwealth, 5 Metc. 532. This practice has continued up to the present. Commonwealth v. Mullen, 150 Mass. 394, 23 N. E. 51, and cases there collected; Commonwealth v. Dow, 217 Mass. 473, 105 N. E. 995;Commonwealth v. Bishop, 165 Mass. 148, 42 N. E. 560;In re Lebowitch, Petitioner, 235 Mass. 357, 363, 126 N. E. 831;Commonwealth v. Szczepanek, 235 Mass. 411, 126 N. E. 847;Commonwealth v. Dyer, 243 Mass. 472, 138 N. E. 296. See Castro v. The Queen, 6 App. Cases, 229, and Rex v. Thompson, [1914] 2 K. B. 99.

The crimes charged in these two complaints might have been set forth by two separate counts in one complaint. Commonwealth v. Bickum, 153 Mass. 386, 26 N. E. 1003. There is no difference in effect on the substantive rights of the defendant and his just protection in every material particular between bringing him to trial upon several counts in one indictment or one complaint, on the one hand, and, on the other hand, bringing him to trial upon several indictments or complaints, provided in each instance the divers crimes thus charged are such that they might have been charged in separate counts in the same indictment or complaint, and settled by a single trial without requiring the prosecutor to elect. Procedure of this nature ought not to depend merely upon an accident of pleading. When no substantial rights of a defendant are at stake, the interest of the public requires that the guilt of one accused of crime shall be decided as expeditiously and inexpensively as is reasonably practicable. Adherence to an ancient practice as to separate trials is no longer demanded in view of the modern system of criminal pleading. It must be held that Commonwealth v. Bickum, 153 Mass. 386, 26 N. E. 1003, no longer states the correct practice on this point. Its authority was shaken by Commonwealth v. Seeley, 167 Mass. 163, 45 N. E. 91, and by Commonwealth v. Rosenthal, 211 Mass. 50, 97 N. E. 609,47 L. R. A. (N. S.) 955, Ann. Cas. 1913A, 1003. It was said in the latter case:

‘No sound reason can be given why several indictments charging different crimes arising out of a single chain of circumstances should not be tried together. Where several offenses might have been joined in one indictment, and would be proved by substantially the same evidence, or evidence connected with a single line of conduct, and grow out of what is essentially one transaction, and where it does not appear that any real right of the defendant has been jeopardized, it would be a refinement not demanded by the law or justice to require in all instances a separate trial, simply because separate indictments had been found for each offense.’

That principle is applicable to the case at bar.

[3] It is the heavy obligation of the trial court sedulously to take care that the defendant is not confounded in his defense, that the attention of the jury is not distracted, and that in no aspect are the substantive rights of the defendant adversely affected, by requiring him to proceed to trial on separate complaints for different offenses or on separate counts for different offenses in one complaint.

Nothing on this record affords an indication that the defendant was in any way embarrassed or prejudiced by requiring him to go to trial upon both complaints. It was a matter of indifference, so far as concerned the genuine rights of the defendant to a fair trial, whether the pleading was in one form or the other. His position was in no respect worse than it would have been if both offenses had been charged in distinct counts in a single complaint. No miscarriage of justice has occurred.

[4] 2. The bill of exceptions states that the only evidence offered ‘to prove the alcoholic contents of the ‘moonshine’ were four certificates' in the form prescribed by G. L. c. 138, § 55, signed by the analyst of the department of health of analyses made pursuant to section 54 of the same chapter.

Confessedly the certificates are made competent evidence by statute. The objection to the admission of the evidence, which has been argued, relates to the constitutionality of the statute. The pertinent sections require inspection and analysis of all samples of liquors sent by designated officers to the department of public health, provided it is satisfied that the analysis requested is to be used in connection with the enforcement of the laws of the commonwealth. A signed statement in the form prescribed of the percentage of alcohol by volume at 60 degrees Fahrenheit contained in such samples ‘shall be prima facie evidence of the composition and quality of the liquors to which it relates.’

The statute is assailed as violative of that part of article 12 of the Bill of Rights to the effect that, in prosecutions for crime, ‘every subject shall have a right * * * to meet the witnesses against him face to face.’ It was said in Commonwealth v. Richards, 18 Pick. 434, at page 437,29 Am. Dec. 608, that:

‘That provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled rules of the common law.’


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