Commonwealth v. Wellington

C. Allen, J.

This case is submitted to us merely on printed briefs, so that we have no opportunity of obtaining from counsel any explanations to aid us in a correct understanding of the bill of exceptions, respecting which we have been somewhat at a loss. The indictment, which was returned into court on-September 10, 1887, charged the defendant with having kept a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors, from January 1, 1887, to August 9, 1887. The defendant kept a drug store. A seizure was made on July 16, 1887, and certain kinds and quantities of liquor were found, and an empty keg which had contained whiskey, and also some empty ale and porter bottles. There was no evidence of a sale. There was other evidence tending to show that the defendant was guilty, but the seizure was also relied on as material and significant evidence tending to establish his guilt; and we must necessarily treat it as important.

The defendant, for the purpose of explaining his possession of liquors at the time of the seizure, offered testimony to show that he had then made an application for a druggist’s license, ■under the St. of 1887, c. 431, which license was granted to him five days after the making of the complaint which was the foundation of this indictment. It is thus to be inferred that there had been such a complaint before a trial justice, though the date of it is not ascertainable from the record before us, and is not absolutely essential. This evidence was excluded. The fact of the subsequent granting of the license could have no other significance than as it might tend to show the defendant’s good faith in applying for it, and his reasonable expectation of its being granted. But the defendant contends that the fact that he had pending an application for a druggist’s license was competent to be considered by the jury in explanation of the fact of his having the liquors on hand. The application for a license would certainly furnish no good explanation of the empty whiskey keg, or the empty ale and porter bottles ; but possibly some other explanation might be given in respect to them. So far as the liquors on hand were concerned, it seems to us that the fact of his application for a license might properly be considered by the jury. Take a strong case. Suppose the defendant had previously had a license, and before its expiration made application for a renewal of it, but a delay happened in the granting of the new license, so that for a few days he had no license. The fact that he had liquors on hand during the interval would properly have - less weight against him, if these other facts were shown. The existence of a previous license, which had shortly before expired, or the reasonable expectation of obtaining a license upon an application already made, no actual sale being shown, might have some proper weight in the minds of the jury in determining whether the liquors kept by him were intended for illegal sale.

In the instructions to the jury which were requested, reference is made to “ the evidence of the officer as to a license,” and this request, and the manner in which the court dealt with it, suggest a doubt whether, after all, evidence was not finally admitted that the defendant obtained a license, and had an application therefor pending at the time of the seizure. We are apprehensive that there may have been some inadvertence in signing the bill of exceptions. But we find nothing stated with sufficient. distinctness to relieve us from the necessity of determining the bald question whether evidence of the fact that the defendant had an application for a license pending at the time of the seizure might have a material beai’ing upon the question of his intent in keeping the liquors. We are of opinion that it was admissible. Exceptions sustained.