Commonwealth v. Werlinsky
| Citation | 29 N.E.2d 150,307 Mass. 608 |
| Parties | COMMONWEALTH v. WERLINSKY. |
| Decision Date | 18 September 1940 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County.
Hyman Werlinsky was convicted of an offense under a complaint, which was based upon G.L.(Ter.Ed.) c. 272, § 21, charging defendant with unlawfully selling articles for the prevention of conception, and he brings exceptions.
Exception to denial of defendant's request for a ruling sustained. Alfred B. Cenedella, Asst. Dist. Atty., of Worcester, for the commonwealth.
Meyer Cohan and Harry Zarrow, both of Worcester, for Hyman Werlinsky.
The defendant, charged by complaint with unlawfully selling ‘articles for the prevention of conception’, was convicted at a trial in the Superior Court before a judge sitting without a jury. The complaint was based upon G.L. (Ter.Ed.) c. 272, § 21, which provides in part for punishment by imprisonment or fine of any person selling ‘any drug, medicine, instrument or article whatever for the prevention of conception.’ The request of the defendant for a ruling that ‘where a statute prevents the sale of an article for a designated purpose, and where the said article has in addition a purpose which is legal, it must be presumed, in the absence of evidence to the contrary, that the sale of the article was for the legal purpose,’ was denied and the defendant excepted. The trial judge found specifically ‘as a fact that the articles sold by the defendant were for the prevention of conception.’
While as a matter of technical form the statement of law in the requested ruling in terms of presumption may be open to criticism, the statement was correct in substance as applied to the statute involved in the case in accordance with the decision made under the same statute in Commonwealth v. Corbett, Mass., 29 N.E.2d 151. The ruling requested was applicable to the evidence in the case. Its denial was prejudicial to the defendant. The specific finding of the trial judge did not render the request immaterial. This finding does not import a recognition by the trial judge of the principle of law embodied in the requested ruling.
Since, in the opinion of a majority of the court, the exception to the denial of this request for a ruling must be sustained, other exceptions need not be considered. The questions raised thereby may not be presented in the same form at another trial.
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...has been greatly weakened by the subsequent decisions in Commonwealth v. Corbett, 307 Mass. 7, 29 N.E.2d 151, and Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150. While in the Gardner case the Massachusetts court held (300 Mass. at page 375, 15 N.E.2d at page 224) that their statute......
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...510 (2d Cir. 1938); Davis v. United States, 62 F.2d 473 (6th Cir. 1933); Commonwealth v. Corbett, supra; Commonwealth v. Werlinsky, 307 Mass. 608, 29 N.E.2d 150 (Sup.Jud.Ct.1940). However, some state courts with similar absolute statutes refused 'to inject into their statutes such an except......
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