Commonwealth v. Shurn

Devees, J. The defendant excepted to the admission in evidence of a copy of a certain receipt, purporting to be from Sliurn, by one Harper, of the price of a certain half-barrel of porter. If the receipt itself would have been admissible as material upon the issue of the guilt of the defendant, it having been shown to have been taken into the possession of the defendant and his counsel, and they having refused to produce it, a copy was admissible. Commonwealth v. Goldstein, 114 Mass. 272. The defendant further excepted to the refusal of the court to rule that there was no evidence sufficient in law to sustain the complaint. There was evidence that Buckley ordered, by one Reardon, porter from Millbury; that the quantity ordered was delivered to him in Worcester; that it was there paid for by him; and that he took a receipt for the amount paid from the man who delivered it to him. This was sufficient evidence of a sale in Worcester, although not of a sale by the defendant. While the receipt, if identified as the one delivered to Buckley, which purported to be signed by one Harper for the defendant, did not of itself prove that Harper was entitled to act for the defendant, or that the porter came from the defendant, it was for the jury to say whether the original receipt was thus identified, and whether, when produced at the trial in the district court, the defendant had by his acts and conduct admitted it to be his, or as given by his authority as a voucher for the payment set forth [153] therein, or that he then endeavored to suppress a .paper which would have afforded one step in the evidence against him. If so, evidence was afforded that the sale was made by him through his agent Harper. At the trial in the district court, Buckley made no claim to the original receipt. When it was produced, the defendant was present with his counsel; and the latter in the defendant’s presence asked for it, then insisted on his right to retain it, did so, and at the subsequent trial in the Superior Court, although the receipt was demanded by the prosecuting attorney, it was not produced. This was an assertion of a claim, ■made in the defendant’s presence by his counsel, of his right to this paper as his own property as against the government, and, when connected with the contents of the paper, affords some evidence that the transaction with Buckley was a sale made by the defendant through his agent. To the other rulings and refusals to rule no exception was taken. Exceptions overruled.