For the prosecution, evidence was introduced tending to establish certain criminatory facts, namely, that the defendant was behind the counter with his coat off, and in possession of whiskey in a bottle, with glasses; thus being apparently prepared for making sales. This evidence tended to confirm the direct testimony of the government witnesses, that a sale was made by him. The direct testimony of a sale being contradicted by two witnesses, it was obviously important for the defendant to show, if he could, that the circumstances which bore against him were consistent with his innocence. In this aspect, testimony was competent to show that the whiskey did not belong to him, but to a club of which he was a member; that the whiskey was there merely for the use of the members, and was not for sale; and that no member had a right, or was permitted, to sell any. No doubt all these things might be true, and yet the defendant be guilty; but their tendency was in favor of his innocence. The jury might properly find them sufficient to explain the suspicious circumstances against him, and thus to rebut the presumption of fact which might otherwise arise from them. Commonwealth v. Cotton, 138 Mass. 500. Commonwealth v. Pomphret, 137 Mass. 564.
The final instruction asked for was properly refused.
Exceptions sustained.