Commonwealth v. Stevens
| Decision Date | 06 January 1892 |
| Parties | COMMONWEALTH v. STEVENS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.E. Pillsbury, Atty. Gen., and G.C. Traves, Asst Atty. Gen., for the Commonwealth.
F.W Qua and W.F. Courtney, for defendant.
All but one of the defendant's exceptions in regard to the admission of evidence were waived at the argument. As to that, he contends that the testimony of the witness Palmer in reference to the number of sales entered in the defendant's register during the two weeks immediately before the sale charged in the complaint was wrongly received. An important question in issue was whether the defendant was criminally responsible for the sale made to the minor by his clerk. There was evidence that the defendant had forbidden his clerks to make such sales; and, as tending to show that the sale was made without authority from the defendant, evidence was introduced in his behalf that he always endeavored to comply with the law respecting sales of intoxicating liquor, and that his clerks acted under strict orders, the effect of which would be materially to reduce the number of their sales below that which they lawfully might make. As tending to contradict the defendant, we are of opinion that it was within the discretion of the presiding judge to admit evidence that the number of sales of intoxicating liquor registered by him during the week preceding May 19th, excluding Sunday, was 3,059, and during the following week was 1,924. If this had been shown by the production of the register the question would be free from difficulty. Com. v. Rooks, 150 Mass. 59, 22 N.E. 436; Com. v. Stevens, 153 Mass. ----, 26 N.E. 992. The rule that requires the production of the best evidence readily obtainable is an important one. Where the contents of a book or written document are needed in evidence, the book or writing should be produced, when there is no good reason for the non-production of it; and if, in the present case, the presiding justice had excluded the evidence, unless the defendant had failed to produce the book on notice, we cannot say that his ruling would have been erroneous. On the other hand, this was not an ordinary writing, or a public record. It was a register, required by the statute[1] to be kept as a part of the business done by the defendant under his license. Its form is prescribed by the statute. The pages are to be divided into eight columns, each column with a prescribed heading, under which the entries are to be made showing the required particulars in regard to each sale. These particulars must be entered at the time of every sale. The statute contemplates that this book shall all the time be kept at the store of the apothecary, and provides that it shall at all times be open to the inspection of certain officers mentioned. The witness was one of these officers, and he was allowed to testify to the number of entries of sales within a specified time. Neither the witness nor any other of the officers of the commonwealth had a right to take the book from the defendant and bring it to the court, and there would be some force in a suggestion that a notice to the defendant to produce it to be used in evidence would have been inconsistent with a proper regard for duty of the defendant to keep it where entries of sales might immediately be made in it so long as he continued to do business under his license. The particulars of the entries in regard to the sales were not offered in evidence, and the precise words written in the register were not in question. It has been held that the language of a license hanging on the wall of a liquor dealer's shop may be testified to orally. Com. v. Brown, 124 Mass. 318. This decision does not cover the case at bar; but there is some ground for contending that the number of sales found recorded in the register should be considered as a fact in the mode of conducting the defendant's business, to be observed by a police officer in the performance of his duty of inspecting the register, and to be testified to like any other material fact apparent to an observer. Such evidence was received without objection in Com. v. Perry, 148 Mass. 160, 19 N.E. 212. We are not convinced that there was such error in this particular as to entitle the defendant to a new trial.
The only other exceptions argued relate...
To continue reading
Request your trial