Commonwealth v. Kimball , 48 Mass. 304 ( 1843 )

Dewey, J.

The first question raised in the argument of the present case is that of the competency and sufficiency of the evidence offered to sustain the allegation in the indictment, that the defendant was not duly licensed as a retailer of spiritous liquors.

That it is incumbent on the government to produce prima fade evidence of that fact, although a question formerly of doubt, and one as to which there has-been some diversity of decision in the different States, was settled to be the rule in this Commonwealth, in the case of Commonwealth v. Thurlow, 24 Pick. 374. It is however to be taken as the rule of law under the restrictions and limitations which the reasoning of the court, in the opinion given in that case, justifies and indeed requires. Evidence upon this point is said to be required of the government, because it is an averment that can be proved with great facility. But what evidence is easily produced ? It is the record, or memorandum, or minutes of the county commissioners in the matter of licenses to sell spiritous liquors. If a license has been granted to the defendant, it ought to be found stated in the documents above mentioned, or some of them; and the law will presume, at least in the absence of contrary proof, that these records and minutes will show every case of the granting of licenses. It is this species of evidence which this court has held it reasonable that the government should be required to produce in proof of the nega tive averment that the defendant was not duly licensed. If the evidence be produced, so far as it exists, and if these records or minutes do not show the granting of a license, the government has discharged itself of the burden resting on it upon this point, and it is for the other party to control it by other evidence, if any other legal evidence exists, showing a license to have been granted.

What were the facts in the present case? A book was produced, which the government contended was the book in which were recorded all licenses granted by the county commissioners. Nothing appeared on this book indicating the granting of any license to the defendant. The docket was also produced, and there was no entry there of such license being granted. Another book, called in the argument the book of general records, it seems was not produced on this trial. But a very good reason was shown why it was not produced, viz. that it had no records in it covering the period which was the subject matter of the present inquiry; the general record book not being yet made up to that period. The books and documents, which were offered, were shown to be the records, dockets and minutes, of the county commissioners, by the testimony of the clerk ; and thus far he was a competent witness.

Such minutes of a license, without an extended record, were held to be competent evidence to sustain an indictment against an innholder, charging him with a violation of duty as an inn-holder, in Commonwealth v. Bolkom, 3 Pick. 281; and it was there held, that “the judges of the court of sessions (whose jurisdiction is now transferred to the county commissioners) act merely as ministerial officers, and not as a court of record, and their minutes are sufficient evidence.” Perhaps the duties required of the clerk by the Rev. Sts. c. 84, § 5, and c. 88, § 5, may somewhat modify the rule here stated. In the case of Davidson v. Slocomb, 18 Pick. 464, the effect to be given to minutes, memoranda and dockets, where no extended record had been made up, was the subject of the consideration of this court; and it was there held, that the minutes and memoranda of a justice of the peace, who had died before making up his record, might be regarded substantially as a record, and were entitled to the same credit as the extended record would have been.

In the case before us, it would seem that the books, minutes and docket of the clerk, containing all the evidence that existed as to the granting of a license to the defendant to sell spiritous liquors, were produced. We give no particular effect to the cer tificate of the clerk, entered on the book, that “ no licenses were granted in 1842.” ,The books, minutes and dockets, if they show, when produced, no license granted, furnish the prima facie evidence which the law requires of the government upon this point.

In the opinion of the court, sufficient and competent evidence was here offered to establish, as far as the government was bound to do in the first instance, the negative allegation contained in this indictment, that the defendant was not licensed as a retailer of spiritous liquors.

The further question raised, in the present case, is as to the sufficiency of the counts, which charge that the defendant “ on the 1st day of September in the year 1842, at Haverhill, he not being then and there first licensed as a retailer of wine and spirits, as provided in the forty seventh chapter of the revised statutes, did presume to be, and was, a retailer of wine, brandy, rum, and spiritous liquors to one [A. B.] in a less quantity than twenty eight gallons, and that delivered and carried away all at one time.” The supposed defect is the want of averment of the sale to A. B. Such averment is necessary. Commonwealth v. Thurlow, 24 Pick. 374. Does the allegation, that the defendant was a retailer of spiritous liquors to A. B., charge a sale of spiritous liquors to A. B. ? We think that it does substantially allege a sale. To retail is to sell in small quantities. To retail to any particular individual is to sell to him in a small quantity. The expression is not one which is the best adapted to state this offence with the greatest precision and clearness, nor is it according to the most approved forms. It is not, however, such a defect as requires us to quash the indictment as insufficient.

Exceptions overruled.