Commonwealth v. Muchnikoff

Rugg, C.J. Six defendants were indicted for conspiracy to sell intoxicating liquors, to expose and keep for sale intoxicating liquors, and to transport by vehicle intoxicating liquors. Other defendants, save one not apprehended, having pleaded guilty, the case was finally submitted to the jury against Michael Muchnikoff and Jesse J. Muchnikoff alone. Verdicts of guilty were rendered against both, each was sentenced, execution was stayed pending determination of exceptions in this court, and exceptions were allowed. Thereafter, as appears from the docket entries and certificate of the clerk of courts, the defendant J. J. Muchnikoff waived his exceptions in open court, order staying execution of sentence was revoked, the sentence imposing both fine and imprisonment was revoked, and a new sentence imposing a fine only was entered and the fine paid. In these circumstances the exceptions of J. J. Muchnikoff are not now rightly before this court and will not be considered. The single exception of Michael Muchnikoff, hereafter called the defendant, was to the denial of a motion to direct a verdict in his favor. An accomplice testified that during about seven months of the time alleged he was driving an [183] automobile for the three of the defendants, who had pleaded guilty, in the illegal transportation of intoxicating liquor through Cambridge; that he was in the habit of meeting one or more of these three defendants at the Brookline Street garage in Cambridge, where at times the load carried in his automobile was transferred to other machines and distributed; that he saw the defendant at various times through the day at the garage and, when asked, the defendant occasionally helped him to transfer a part of his load to other machines. There-was other testimony from police officers to the effect that the three defendants who pleaded guilty had been seen at various times driving automobiles in and out of this garage, and on several occasions at night or early morning. There was also testimony that at another garage kept by the defendant and J. J. Muchnikoff a police officer found a truck, owned and kept by one of the three defendants who had pleaded guilty, and seized “liquor” therefrom. The defendant testified that he was the manager of the Brookline Street garage and was there during the daytime; that there was a register of that garage, which was shown him on the witness stand, and that no entries of any of the cars of the other defendants were contained in the book. Such entries were required by law. G. L. c. 90, § 32, as amended by St. 1924, c. 379. The jury might have found on this evidence that the conduct and testimony of the defendant excluded every other reasonable hypothesis except that he was a participant in the unlawful conspiracy charged. Attorney General v. Tufts, 239 Mass. 458, 493, 494. Exceptions overruled as to Michael Muchnikoff and dismissed as to Jesse J. Muchnikoff.