COMMONWEALTH v. HELFMAN

Intoxicating Liquor. Practice, Criminal, Exceptions, Charge to jury. Evidence, Presumptions and burden of proof, Matter of common knowledge, Inference. Husband and Wife.

At the trial of a complaint charging the keeping and exposing of intoxicating liquor with intent to sell it unlawfully, it was proper for the trial judge to permit a sergeant of police, who had testified that he had read an anonymous letter in the presence of the defendant and of his wife, to refresh his recollection from the letter and to state further what he said to the defendant and to his wife, where the judge found that the letter was read as a part of a single conversation with the defendant and it appeared that in reply to the reading of the letter the defendant merely denied that there was liquor in the store at that time and challenged the witness to find any, and that substantially all of the letter related directly or indirectly to the complaint on which the defendant was being tried, and that a trifling part that did not so relate was immaterial and harmless: the evidence was competent upon the question whether the defendant's equivocal statement respecting the charge amounted to an admission of its truth in whole or in part. Since the adoption of the Eighteenth Amendment to the Federal Constitution and the enactment of statutes to enforce its prohibitions, the mere possession of intoxicating liquors has a new and less innocent aspect as evidence of guilt than it had theretofore. There can now be no lawful manufacture of spirituous or intoxicating liquor, or transportation of it, without permit. Possession of it that it lawful is now more difficult and unlikely than it was hitherto. Per RUGG, C.J. At the trial of the complaint above described, there was evidence that the store, ostensibly exclusively for the sale of dry goods, was frequently resorted to by persons known to be drinkers of intoxicating liquor; that officers searching the store found some of the usual accompaniments of illegal sales of intoxicating liquors; that as they were leaving they asked the defendant to open the cash drawer; that at first the drawer did not open fully, the defendant preventing by his body a complete opening; that when it was opened there were found, in a compartment at the back designed for holding bills, bottles containing intoxicating liquor, each separately wrapped. Held, that a motion that a verdict of not guilty be entered properly was denied. At the trial above described, there was evidence justifying a finding that either the defendant or his wife was in control of the store. The judge charged the jury in substance that the ownership of the store "was not, however, the deciding matter in this case"; that, if the defendant participated, whether as an owner or not, in the alleged illegal acts, he might be found guilty. Held, that there was no error in such instruction. Exceptions to instructions by the judge in his charge at the trial above described, to the effect that, when a wife performs such criminal acts as were there in question in the presence of her husband, there was a presumption, rebuttable by evidence or by other circumstances, that she was acting under his coercion and that he was responsible for her acts, were overruled. The defendant's counsel, in his closing argument at the trial above described, urged that the anonymous letter from which the police sergeant was permitted to refresh his recollection, as above described, was spurious and was obtained since a trial in the lower court because it was not produced in that court. The judge in his charge instructed the jury that "at the trial of criminal cases in municipal courts of this Commonwealth, the government is ordinarily not represented by an attorney; such cases are ordinarily prosecuted by a sergeant of police or police officer; that the police officer sometimes asks the questions of the government witnesses; that oftentimes the police officer so prosecuting does not know much about the rules of evidence; that it is not at all unusual for the police to have evidence in their possession which for some reason is not introduced or offered in evidence at the trial of such cases in said courts; that, even if the letter in this case existed and was in the possession of . . . [the sergeant] at the time, it would not be unusual if he had not offered it in evidence in said Municipal Court; that in view of the foregoing it was for them to say whether they would draw any inference from the fact that . . . [the sergeant] had not offered said letter at said trial in said court." Held, that (1) The instruction called the attention of the jury to a matter of common knowledge in the county where the complaint was tried; (2) The instruction was not improper in view of the argument in behalf of the defendant: the weight of the argument was left wholly to the jury without further suggestion from the judge.

RUGG, C.J.

The defendant was tried on a complaint for keeping and exposing intoxicating liquors with intent to sell contrary to law. A sergeant of police testified that he with another officer went to a dry goods store, where he found the defendant and his wife, in whose presence he read aloud an anonymous letter previously handed him by a superior officer. He was further allowed, subject to the exception of the defendant, to testify from memory what he said to the defendant and his wife, using the letter to refresh his recollection. In this there was no error. It was for the trial judge to determine whether the letter was read as a part of a single conversation with the defendant. His finding in this respect on the present record is not open to review. Commonwealth v. Russell, 160 Mass. 8, 10. Substantially all of the letter related directly or indirectly to the complaint on which the defendant was being tried. The trifling part which did not was irrelevant and could have done the defendant no harm. The defendant, in reply to the reading of the letter, merely denied that there was liquor in the store at that time and challenged the witness to find any. The charges contained in the letter were of much wider import, and of such other matters there was no denial. The evidence was competent upon the question whether the defendant's equivocal statement respecting the charge amounted to an admission of its truth in whole or in part. Commonwealth v. Brailey, 134 Mass. 527, 530. Commonwealth v. Trefethen, 157 Mass. 180, 197, 198. Commonwealth v. Porter, 237 Mass. 1, 5. Warner v. Fuller, 245 Mass. 520, 528. Commonwealth v. Zaidon, 253 Mass. 600.

The officers found in the store some of the usual accompaniments of illegal sale of intoxicating liquor. As they were about to leave the store, they asked the defendant to open the cash register. At first the drawer did not open fully, the defendant preventing by his body a complete opening. In the compartments at the back designed for holding bills were found bottles containing intoxicating liquor, each separately wrapped. The defendant's motion for a directed verdict in his favor was denied rightly. The finding of bottles of intoxicating liquor in the circumstances described, the disingenuous and crafty conduct of the defendant in opening at first only partly the drawer of the cash register, and not fully until compelled by the officers, the frequent resort of men known to be drinkers to the store ostensibly used exclusively for the sale of dry goods, the presence of the defendant on the premises on numerous occasions and his more or less suspicious actions there, required the submission of the case to the jury. Commonwealth v. Kozlowsky, 243 Mass. 538, and cases there collected. Commonwealth v. D'Amico, 254 Mass. 512, 515. Since the adoption of the Eighteenth Amendment to the Federal Constitution and the enactment of statutes to enforce its prohibitions, the mere possession of intoxicating liquors has a new and less innocent aspect as evidence of guilt than it had theretofore. There can now be no lawful manufacture of spirituous or intoxicating liquor, or transportation of it, without permit. Lawful possession of intoxicating liquors is now more difficult and unlikely than it was hitherto. Commonwealth v. Green, 253 Mass. 458. Commonwealth v. Intoxicating Liquors, 258 Mass. 85, 87. Corneli v. Moore, 257 U.S. 491. Selzman v. United States, 268 U.S. 466.

There was evidence, which need not be narrated, to justify a finding that either the defendant or his wife was in control of the store. The charge to the jury upon this point was not open to just exceptions. Commonwealth v. Klosowski, 252 Mass. 149.

The charge of the judge, to the effect that when a wife performs such criminal acts as are here in question in the presence of her husband there is a presumption, rebuttable by evidence or by other circumstances, that she is acting under his coercion and that he is responsible for her acts, was in conformity to numerous decisions rendered since the enactment of the comparatively modern statutes ameliorating the common law conditions of married women. The presumption is disputable. Doubtless it has lost something of its force by reason of the wider liberty of married women established by legislative enactments and by the usages of society, and hence may be more easily overcome by evidence. But no law has abolished the presumption and it still exists for what it is worth in the light of the facts of each case. Commonwealth v. Wood, 97 Mass. 225. Commonwealth v. Barry, 115 Mass. 146, 148. Commonwealth v. Kennedy, 119 Mass. 211. Commonwealth v. Carroll, 124 Mass. 30. Commonwealth v. Pratt, 126 Mass. 462. Commonwealth v. Hill, 145 Mass. 305, 307, 308. Commonwealth v. Walsh, 165 Mass. 62, 64. Commonwealth v. Adams, 186 Mass. 101, 105.

The case at bar did not call for any further definition of the respective rights and criminal responsibility of husband and wife touching business confessedly belonging to the wife in her own right and in her exclusive possession and control.

Counsel for the defendant argued to the jury that the letter used by the police sergeant in his testimony respecting his interview with the defendant was spurious and was obtained since the trial in the Municipal Court, because it was not produced at that trial. With respect to that matter, the judge instructed the jury that "at the trial of criminal cases in municipal courts of this Commonwealth, the government is ordinarily not represented by an attorney; such cases are ordinarily prosecuted by a sergeant of police or police officer; that the police officer sometimes asks the questions of the government witnesses; that oftentimes the police officer so prosecuting does not know much about the rules of evidence; that it is not at all unusual for the police to have evidence in their possession which for some reason is not introduced or offered in evidence at the trial of such cases in said courts; that, even if the letter in this case existed and was in the possession of Sergeant Miller at the time, it would not be unusual if he had not offered it in evidence in said Municipal Court; that in view of the foregoing it was for them to say whether they would draw any inference from the fact that Sergeant Miller had not offered said letter at said trial in said court." In this there was no error. It called the attention of the jury to a matter of common knowledge in Suffolk County. Lajoie v. Milliken, 242 Mass. 508, 520. This was not improper in view of the argument in behalf of the defendant. The weight of the argument was left wholly to the jury without further suggestion from the judge. Plummer v. Boston Elevated Railway, 198 Mass. 499, 515, 516. Commonwealth v. Dyer, 243 Mass. 472, 508. O'Neill v. Ross, 250 Mass. 92, 96, 97.

Exceptions overruled.