Commonwealth v. Fomuck

Pierce, J. At the trial of the defendant in the Superior Court on a complaint charging him with keeping and exposing intoxicating liquor with intent to sell the same, the evidence tended to show that the defendant maintained and conducted a certain grocery and provision store at No. 67 Second Street, Chelsea; that it was one in a block of six stores between Walnut Street and Second Street; that the store in the block next to the defendant’s premises was vacant and the defendant had a key which would admit his entering it; that he was seen in the vacant store; “that at the time of the raid the police officers found in said vacant store three half pint bottles of whiskey.” Officer Elmore for the Commonwealth testified substantially as follows: “Q. Have you observed this place (meaning defendant’s store)? A. Yes.— Q. What observation have you made? A. I have observed men going in there whom I knew to be drinking men. I have talked with them when they came out and smelled liquor off of their breath.” The defendant moved to strike out that part of the answer which said “whom I knew to be drinking men.” The trial judge refused so to do, and stated that that part of the answer should stand. The defendant duly excepted to this refusal. No question is raised otherwise as to the sufficiency of the evidence to warrant a conviction, “The sole question for determination being the competency of that part of the answer admitted over objection.” The contention of the defendant, that the “observation” of the witness was incompetent because the time of his observation is not disclosed, is disposed of by the fact that the defendant’s bill of exceptions does not state that it contains all evidence material to the narrow issue now raised, and because it must be assumed in the absence of such a declaration that the evidence received related to a time reasonably near to the time named in the complaint. The fact that a place is the resort of drinking men obviously bap real evidentiary value in the proof of a charge that the place of resort is a place where intoxicating liquor may be obtained. Upon such a charge proof of the drinking habits of the frequenters of the place may be shown by direct evidence, [294] or by evidence of the general reputation of such persons for sobriety in the community in which they live, or otherwise. We find it unnecessary to determine whether evidence of the habits of frequenters of houses of ill fame and of other criminal nuisances is restricted to evidence of general repute. Commonwealth v. Kimball, 7 Gray, 328. Commonwealth v. Gannett, 1 Allen, 7. Commonwealth v. Car doze, 119 Mass. 210. Exceptions overruled.