Commonwealth v. Stoler
| Decision Date | 05 April 1927 |
| Citation | 259 Mass. 109,156 N.E. 71 |
| Parties | COMMONWEALTH v. STOLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; J. J. Mahoney, Judge.
Lena Stoler was convicted of keeping intoxicating liquor with intent to sell same unlawfully, and she excepts. Exceptions overruled.
D. J. Lyne, Asst. Dist. Atty., of Boston, for the Commonwealth.
R. J. Hartford and T. P. Diggins, both of Boston, for defendant.
The only question raised by this bill of exceptions is whether certain certificates purporting to be made by the assistant analyst of the department of publc health were properly admitted in evidence to show the alcoholic content of liquor alleged to have been kept unlawfully and exposed for sale by the defendant with intent unlawfully to sell it.
There was evidence that a police officer, one Conroy, seized liquor on the defendant's premises and delivered it to the sergeant, Curran, in charge of the liquor squad of his station; that Curran on the same day transmitted samples of the liquid to the department of public health with letters of transmission substantially in the form of certificate set out in G. L. c. 138, § 55, declaring that it was seized by him on August 20, 1926, from Lena Stoler, 33 Dover street, requesting that the percentage of alcohol be ascertained and a certificate upon an annexed form be returned to him, and giving his name and address. Certificates upon the forms annexed were returned, showing analyses made August 21, 1926, which disclosed percentages of 33 per cent. and 33 6/10 per cent. of alcohol by weight in the samples at 60 degrees Fahrenheit. There was evidence that it is the practice of the police of Boston that officers who make seizures of liquor turn it over to the sergeant in charge of the liquor squad, who prepares the certificate to be sent to the department of public health with the liquor to be analyzed, asserts in the certificate that the seizure was made by him, although, in fact, made in his absence and by another officer, and does not set out the name and address of the officer who actually took the liquor.
The analyst or assistant analyst of the department of public health, if the department is satisfied that the analysis requested is to be used in connection with the enforcement of the laws of the commonwealth, is required by G. L. c. 138, § 54, as revised by St. 1921, c. 495, and amended by St. 1922, c. 22, to make analysis ‘of all liquors sent to it by the licensing board of any city, the selectmen of any town, or by police officers * * * authorized by law to make seizures of liquors,’ and to return as soon as may be a certificate of the percentage of alcohol in the samples by weight at 60 degrees Fahrenheit. The statute provides that:
‘Such certificate shall be prima facie evidence of the composition and quality of the liquors to which it relates, and the court may take judicial notice of the signature of the analyst or the assistant analyst, and of the fact that he is such.’
By G. L. c. 138, § 55, it is provided that:
‘A certificate shall accompany each sample of liquor sent for analysis by an officer to the department of public health stating by whom the liquor was seized, the date of the seizure, the name and residence of the officer who seized said liquor.’
Section 55 requires the department to note upon the certificate the date of receipt and the analysis of the liquors and the percentage of alcohol; and it provides that the certificate ‘may be’ in a form which follows. By section 56, a certificate substantially in the form set out ‘shall be admitted as evidence on trials for the forfeiture of intoxicating liquors as to the composition and quality of the liquors to which it relates.’
The defendant contends that the requirements of section 55 are mandatory with regard to liquors transmitted for examination under section 54 as amended and revised; and that, consequently, the failure to assert seizure by Officer Conroy and to give his name and address, in the letters of transmission requesting the certificates here offered in evidence, deprives the certificates of the evidentiary character that certificates which complied strictly with the statute would possess.
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State v. Smith, 271PA84
...144; State v. Torello, 103 Conn. 511, 131 A. 429; Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281; Commonwealth v. Stoler, 259 Mass. 109, 156 N.E. 71. The alcoholic content of the blood, the evidentiary fact sought to be proved by the certificate may be accurately determ......
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...chemical analysis of alcohol. All of these cases predate Pointer, Barber, Green, and Dutton by some forty years. Commonwealth v. Stoler, 259 Mass. 109, 156 N.E. 71 (1927); State v. Torello, 103 Conn. 511, 131 A. 429 (1925); Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923); Bracey......
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