Commonwealth v. Certain Intoxicating Liquors

Merrick, J.

This is a proceeding under the provision of Gen. Sts. c. 86, to obtain judgment that the intoxicating liquors mentioned in the complaint shall be forfeited to the Commonwealth. In obedience to the summons served upon them, Hill and Leavins both appeared and answered to the complaint; but Hill having been discharged by order of court, the defence was afterwards continued by Leavins alone. He contends that the complaint is insufficient in law, and that the judgment sought for cannot be rendered upon it, because it contains no allegation of the intent of the persons named in it as keepers/of the liquors to sell the same in violation of the provisions of said 86th chapter ; and also because it does not negative any authority in Hill or Leavins to keep and sell such liquors severally, but only in the two jointly.

The statute does in very explicit terms require that the intent of the persons named as keepers of the liquor to sell the same in violation of the provisions of said 86th chapter shall be alleged in the complaint. Such an allegation is therefore essential to its validity as a foundation for the prosecution. But it need not be made in the very words or language of the statute. It is sufficient if that intent is in any form clearly and substantially set forth and averred. Commonwealth v. Thurlow, 24 Pick. 374. And therefore, inasmuch as all persons are prohibited from selling, or from keeping with intention to sell, in this state any ii'toxicating liquors, unless authorized therefor by or under the provisions of said 86th chapter, the charge and averment in the complaint are in substance and effect a clear and plain allegation that the said liquors were kept by Hill and Leavins with intent to sell the same contrary to the provisions of said chapter, §§ 29, 30, 44. Commonwealth v. Gilland, 9 Gray, 3. And the averment that they the said Hill and Leavins had no such legal authority is applicable to each of them individually. If they had been thus jointly charged in an indictment with the offence of selling liquor unlawfully, either of them might have been convicted, though the other was acquitted. Archb. Crim. Pl. 59, 60. Neither of the objections to the complaint taken by the defendant can therefore be sustained.

By § 54 it is provided that if, in the opinion of the justice or police court before which a warrant under which any liquor has been seized is returnable, the value of the liquor seized, with the vessels containing it, exceeds twenty dollars, a notice shall then be issued, within twenty-four hours after such seizure, to the persons named in the complaint as the keepers of the liquor, and to all other persons claiming any interest therein, commanding them to appear before the superior court at the term to be holden in the county next after the expiration of fourteen days from the time of issuing the notice to answer to the complaint, and to show cause, if any they have, why such liquor and the vessel containing it should not be forfeited. And it further provides that the court before which notice is returnable shall have jurisdiction of the case.

It is objected by the claimant that the superior court never obtained nor could rightly exercise jurisdiction of the complaint, for several reasons. He insists that it is not shown by the record of the police court that the value of the liquor seized upon the warrant returned thereto, with the vessels containing it, was in the opinion of said court more than twenty dollars. He also contends that said record does show that no notice was issued to the claimant as keeper, or to other persons as claimants, of the liquor within twenty-four hours after the same was seized, but that the notice was issued several weeks after the time of said seizure as therein set forth; and he contends further that no notice, but only an • irder of notice, was issued to the claimant.

But none of these reasons, considered in reference to the contents of the record of the police court, and of the documents and legal processes which make part of the bill of exceptions, are sufficient to show any defect of jurisdiction over the case in the superior court.

The recital in the record that “ in the opinion of the court the liquor so seized and the vessels containing the same is valued at more than twenty dollars,” cannot be taken to be, as is contended by the claimant, a mere statement that they were or may have been so valued by others ; but, upon a fair and just interpretation, it means that such is the opinion of the court in relation to the value. Instead, therefore, of its being shown by the record that the court did not, it distinctly appears that the court did, determine that the value of the liquor with the vessels containing it exceeded twenty dollars. And having so determined, it then became the duty of that court within twenty-four hours after the seizure to issue a written notice, under its judicial seal and signed by its clerk, commanding Hill and Leavins, as the persons named in the complaint as keepers of the liquor, and all other persons claiming any .interest in it, to appear at the superior court at the term next to be holden in the county after the expiration of fourteen days from the time of issuing the notice, to answer to said complaint. And thereupon a notice containing the information, statements and commands required by the statute was in fact issued by the police court to the said Hill and Leavins, and all other persons who might be claimants of the liquor, within twenty-four hours after the time of its seizure. This fully and plainly appears from inspection and examination of the original written notice, and from the warrant directed to the officer requiring him to make service of the same, and his certificate of his doings by virtue thereof; all which papers were duly returned at the proper time to the superior court. And that court being thus in possession of said record of the police court, and of the several processes which had been duly issued and served in relation to the liquor which had been seized, acquired under the statute jurisdiction of the complaint, and was bound to proceed to a final adjudication upon all the matters alleged therein.

It is immaterial that the record of the police court states that the seizure of the liquor was made on the twenty-eighth day of April, because it is not necessary to resort to the record to ascertain the time of the seizure. That time is shown conclusively by the return of the officer upon the warrant under and by virtue of which he made the seizure. That the said date in the recital in the record is a mere clerical error, is obvious and certain. The complaint was made on the 27th of February ; the warrant which was issued upon it bears that date. The return of it by the officer, in which he certifies his seizure of the liquor, is dated on the 28th, the next day following; the notice, to Hill and Leavins as keepers of the liquor seized, and to all other persons who may be claimants thereof, and also the warrant to the officer directing him to make seizure of the same, are both dated on the 1st day of March ; and the service of the same was made, as appears by the officer’s return upon his process, on the 10th day of the same month. These several original instruments and processes being all duly in possession of the superior court, show that the notice to the claimant and others was issued by the police court in due season, and that all the preliminary proceedings required by the statute had been fully complied with, and therefore that it could properly take jurisdiction of the complaint. The issuing of the notice to the claimant was a mere ministerial act, like the issuing of an execution by a justice of the peace upon a judgment rendered by him, and need not be made a matter of record. Briggs v. Ward-well, 10 Mass. 356. It is therefore unnecessary to consider whether the clerk of the police court could lawfully, or was properly allowed, to amend his record; because, it being only material on the trial to show that the acts were done, upon Ihe occurrence of which, after the police court had adjudged the value of the liquors to exceed twenty dollars, the jurisdiction of the superior court arose, all this could be and was shown by the production of the original notice, warrant, service and return thereof. So that there was no occasion to resort to that record at all to ascertain the time when the liquor was seized, or any other fact upon which the right of the superior court to take jurisdiction of the complaint depended.

The evidence which was offered by the claimant concerning the alleged misconduct of the officer in the service and execution of a previous process, was properly excluded. Such misconduct, if it had been made to appear, would have no tendency to show that the liquors were not, as was alleged, illegally kept by Hill and Leavins, nor could it have justly affected any question which was in issue upon the trial. Although bis conduct may have been upon the occasion referred to very reprehensible, he would still, if called on for that purpose, have been permitted to testify to any fact of which he there and by such means obtained knowledge. Commonwealth v. Dana, 2 Met. 329. If there was at that time any improper interference by him or by the prosecutors with the property of the two persons named in the complaint as keepers of the liquor, it did not take it from their possession, nor would it show that they did not continue to be if they had before been, the keepers thereof.

It has been objected by the claimant that no judgment of forfeiture can be entered in this case, because it does not appear by the verdict, the return of the warrant, or in any legal manner, that the liquors seized are the same which are described in the complaint. No such question as this arises upon the bill of exceptions, and therefore there is no reason to consider whether there is any force in the objection. It is to be presumed that the proper judgment will be ultimately rendered; and that if there be a judgment of forfeiture, it will be solely in reference to the liquors mentioned and described in the complaint. The judgment can of course affect nothing else.

Some other exceptions were taken at the trial, but they do not appear to be of any importance; and as they have not been insisted upon, and were not even adverted to at the argument we consider them to have been intentionally waived.

Exceptions overruled.