State v. Wold

Whitehouse, J. This was an indictment for maintaining a liquor nuisance upon which the respondent was tried in the superior court and found guilty by the jury. The evidence in behalf of the state included the seizures made by the officers on three visits to the respondent’s premises1 with search warrants during the period covered by the indictment. The respondent offered the records of the municipal court to show that he was discharged in that court on these three search and seizure cases. This evidence was excluded by the presiding judge, and the ease conies to this court on exceptions to that ruling. The ruling was manifestly correct. The records of respondent’s discharge in the municipal court were clearly not admissible upon any recognized principle of evidence. Ilis accpdttal on the search and seizure was not a bar to a conviction upon the nuisance, and had no legitimate tendency to prove non-possession or absence of intent to sell, in the trial of the nuisance case. [404] Having liquors in possession with intent to sell in violation of law and maintaining a common nuisance are distinct offenses, and an acquittal of the former is no bar to a conviction on the latter even upon the same facts. Com. v. McCawley, 105 Mass. 69; Morey v. Com. 108 Mass. 433; Com. v. Sullivan, 150 Mass. 315. The record of a conviction upon a search and seizure process is admissible upon the trial of an indictment to show the intent with which the liquors were kept. State v. Hall, 79 Maine, 501. But the converse of this proposition by no means follows. The evidence upon which the discharge was ordered by the municipal judge may have been entirely different from that produced at the trial of the indictment. The question of the respondent’s guilt or innocence upon the charge of maintaining a liquor nuisance must be determined by the jury upon their judgment of the probative force of all the evidence before them at the trial of that case, and not upon the opinion of the municipal judge respecting the proper weight to be given to that portion of the evidence which may have been offered at the hearing of a different case before him. Exceptions overruled. Judgment for the state.