Commonwealth v. Zaidon

• Decision Date: 24 November 1925
• Citation: 149 N.E. 550,253 Mass. 600
• Parties: COMMONWEALTH v. ZAIDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 600

149 N.E. 550

COMMONWEALTH

v.ZAIDON.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 24, 1925.

Exceptions from Superior Court, Suffolk County; Geo. H. W. Hayes, Special Judge.

Charles J. Zaidon was convicted of keeping and exposing intoxicating liquors with intent unlawfully to sell them, and he excepts. Exceptions overruled.

Maurice Caro, Asst. Dist. Atty., of Boston, for the commonwealth.

Henry P. Fielding and Elias Shamon, both of Boston, for defendant.

RUGG, C. J.

[1] This complaint charges that the defendant kept intoxicating liquors with intent to sell the same contrary to law. There was evidence to the effect that, on the service of a search warrant in the absence of the defendant but in the presence of his wife, about a pint of liquid, containing approximately twenty-six per cent. of alcohol, numerous empty whisky bottles, some with alcoholic odor, and a large quantity of stoppers were found at a store operated by the defendant, and that during two months previous, on six or seven occasions, there was travel to and from this store by persons under the influence of liquor. A verdict in favor of the defendant could not rightly have been directed on such evidence. Commonwealth v. Hurley, 158 Mass. 159, 33 N. E. 342;Commonwealth v. Martin, 162 Mass. 402, 38 N. E. 708;Commonwealth v. Meskill, 165 Mass. 142, 42 N. E. 562;Commonwealth v. Kozlowsky, 243 Mass. 538, 138 N. E. 14;Commonwealth v. Slavski, 245 Mass. 405, 418, 419, 140 N. E. 465, 29 A. L. R. 281.

A police officer testified that shortly before the search at the store, in the presence of the defendant a woman was under the influence of liquor, having in her hand a bottle containing liquid of alcoholic odor, whose husband then and there said to the defendant, ‘You are selling liquor to my wife.’ The defendant said, ‘I am not.’ The husband said, ‘You are; she has some there now;’ and the defendant said again, ‘I am not.’ For that transaction the defendant was not then arrested or thereafter complained of in court. This testimony was admitted solely as bearing on the intent of keeping and exposing intoxicating liquor, as alleged in the complaint. The exceptions recite that to the admission of this evidence of the police officer ‘the defendant seasonably objected and excepted.’ We interpret this to mean that the exception was to the evidence as a whole and not to its separate factors. Plainly evidence as to the presence of the woman in the store of the defendant and the accompanying circumstances was competent. A single exception to the incident as a whole cannot be sustained.

If the exception relates to each separable part of the testimony, it cannot be said that the admission of the exclamations of the husband of the woman and the replies of the defendant constitutes...