Commonwealth v. Oakes

W. Allen, J. The evidence tended to show that the defendants kept intoxicating liquors for sale in the inn of the defendant Oakes, who was licensed as an innholder, and who had a license of the first class for the sale of intoxicating liquors at his inn. To prove that the liquor was illegally kept by the defendants, the government relied upon evidence which tended to show that it was kept by them to be sold over a public bar maintained by them in the inn. Oakes was a witness for the defendants, and testified in chief to the location, size, and shape of the structure which the government contended constituted a bar, and to the uses and purposes for which it was kept. On cross60 examination, the question, “Did you keep a bar?” was allowed to be put to him against the objection of the defendants. He answered the question in the negative. If the question was objectionable, which we do not decide, the answer was favorable to the defendants, and it does not appear that they were in any way prejudiced by the question. The defendants cannot avail themselves in arrest of judgment of the fact that a copy of the warrant was not sent up by the district court. The record showed that they were brought before the district court by virtue of a warrant to answer to a complaint which is set forth, and that they pleaded thereto, and were tried and convicted, and appealed. If they could have objected at any time that a copy of the warrant was omitted, it was too late to do so after trial and verdict in the appellate court. Commonwealth v. Henry, 7 Cush. 512. Commonwealth v. Gregory, 7 Gray, 498. Commonwealth v. Thompson, 2 Allen, 507. Commonwealth v. Intoxicating Liquors, 97 Mass. 600. Commonwealth v. Burke, 121 Mass. 39. Commonwealth v. Hart, 123 Mass. 416. Commonwealth v. Wait, 131 Mass. 417. Exceptions overruled.