Commonwealth v. Kozlowsky

Crosby, J. The complaint charges the defendant with exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same. At the close of the evidence the presiding judge refused to direct a verdict of not guilty, as requested by the defendant, and the defendant excepted. One Healy, a police officer, testified that he knew the defendant, who lived at 106 Berkshire Street, Cambridge, and had a store at 692 Cambridge Street, about “four or five minutes walk” from his house; that from the front door of the store on Cambridge Street, a bar ran twenty or twenty-five feet to the rear; that there was a door in back of the bar where there were shelves upon which were bottles containing various kinds of tonic, ginger cordials and other beverages; that under the bar were fixtures for drawing “near-beer” from the cellar, and glasses were kept on the sink; that in the cellar “near-beer” in barrels and half barrels was kept. This witness further testified that on August — 541 — 17, 1921, he went to the defendant’s house with a search warrant which he showed to the defendant’s daughter; that before entering he heard the sound of the breaking of glass, and upon entering the kitchen found in a wash-tub two broken glass jugs; that he “sopped up” with a handkerchief from the wash-tub nearly a quart of whiskey; that he found a small funnel on top of the wash-tub; that the odor of the liquor was that of moonshine whiskey, and an analysis by the State chemist showed that it contained thirty-six and seventy-one one hundredths per cent alcohol: that the contents of the trap leading from the wash-tub contained, according to analysis by the State chemist, forty-six one hundredths of one per cent of alcohol; that while he was at the house the defendant came in, and the witness informed him that he had a search warrant, showed it to him, and told him that he had found there about a quart of whiskey; that the defendant said it was his and that he had it for his own use. One Douglas, a police officer, testified that on August 6, 1921, he searched the defendant’s place of business at 692 Cambridge Street; that when he entered the defendant’s son ran to the rear of the room; that he found no intoxicating liquor there. He further testified that on July 15, at six o’clock in the morning, he saw the defendant go from his house to his store carrying under his arm a package wrapped in a newspaper; that forty minutes later he saw the defendant’s son go from the house to the store carrying in like manner a package done up in a newspaper; that on July 30, at ten minutes after six o’clock in the morning he saw the defendant’s wife go from the house to the store carrying a similar package; that on August 3 he saw the defendant go from the house to the store carrying a similar package. There was no evidence as to what these packages contained. The question is, whether upon the foregoing evidence the jury were warranted in finding that the whiskey seized in the house at 106 Berkshire Street was kept for sale by the defendant. The mere possession of intoxicating liquor is not prohibited by our statute; the criminal offence charged is the keeping with intent to sell it unlawfully. Commonwealth v. Hayes, 114 Mass. 282, 285. If the whiskey found in the defendant’s house was kept with intent to sell it, contrary to law, it would be immaterial — 542 — that it was not intended to be sold in the place where it was found; if kept in the defendant’s house with intent by him to sell at his place of business, he would be guilty of the offence charged. Commonwealth v. McCluskey, 123 Mass. 401, 406. The circumstance that whiskey was found in the house was admissible to prove that intoxicating liquor was kept by the defendant although, of course, it would not be sufficient to convict without other evidence to show the intent with which it was kept there. The complaint does not allege the unlawful keeping for sale of intoxicating liquors at any particular building or place. The sole issue submitted to the jury was whether the whiskey seized in the defendant’s house was kept for sale by him. The intent unlawfully to sell may, and generally must, be proved by circumstantial evidence. The finding of whiskey in the house and a funnel on the wash-tub, and the other evidence, were sufficient to warrant a conviction. We cannot say that the jury could not have found, as a rational inference, that the defendant’s dwelling house was the storehouse or place in which whiskey was kept and from there carried a short distance to the saloon or store, for the purpose of sale. "It certainly was not a violent stretch of credulity in the jury to believe that the liquors were kept at the house to be sold at the saloon.” Commonwealth v. Intoxicating Liquors, 116 Mass. 24, 26. Commonwealth v. McCluskey, supra. Commonwealth v. Downey, 148 Mass. 14. Commonwealth v. Gillon, 148 Mass. 15. Commonwealth v. Keenan, 148 Mass. 470. Commonwealth v. Shea, 160 Mass. 6. Commonwealth v. Lyons, 160 Mass. 174. Commonwealth v. Martin, 162 Mass. 402. Commonwealth v. Foster, 182 Mass. 276. The case at bar is distinguishable from Commonwealth v. Intoxicating Liquors, 105 Mass. 595. The exception to the admission of the question to the officer who searched the defendant’s house, “Did you have a search warrant?” cannot be sustained; the question and answer were admissible as tending to show that in searching the defendant’s premises he acted under lawful authority. It is immaterial whether the officer had a warrant to search the premises of the defendant or not; or whether if he had such a warrant it was defective. Commonwealth v. Wilkins, ante, 356, and cases there collected. “Evidence which is pertinent to the issue is admissible — 543 — although it may have been procured in an irregular or even an illegal manner.” Commonwealth v. Tibbetts, 157 Mass. 519, 521. Apart from the testimony of the officer that he had a warrant to search the defendant’s dwelling place, he testified that he exhibited it to the defendant and to his daughter. The exception to the testimony of the officer who searched the house and made the seizure as to what he heard and did, and what he found upon entering the kitchen, must be overruled. The facts were within his knowledge and were material upon the issue presented at the trial, even if he were acting unlawfully, which does not appear. Commonwealth v. Hurley, 158 Mass. 159. The judge could not properly have directed a verdict for the defendant; he rightly instructed the jury that they must return a verdict of not guilty, unless satisfied beyond a reasonable doubt that the whiskey found in the defendant’s house was kept for sale. We find no error of law in the conduct of the trial. Exceptions overruled.