Kent v. Willey , 77 Mass. 368 ( 1858 )

Bigelow, J.^*

The court are of opinion that several of the rulings at the trial of this case were erroneous.

1. The answer, in effect, admitted property in the plaintiff and a taking by the defendant. This was a prima facie case for the plaintiff, and entitled him to a verdict, unless the defendant prbved a justification. The alleged authority of the defendant as a police officer to seize the property in controversy, as set forth in the answer, was a defence in the nature of an avoidance of the plaintiff’s claims for damages. It was a new and substantive allegation, the proof of which lay on the defendant. The court erred therefore in requiring the plaintiff to offer any evidence in support of his declaration. The whole issue in the case was on the justification set up in the answer, and it was incumbent on the defendant to go forward and establish his defence. 1 Greenl. Ev. §§ 625, 629.

2. It was not competent for the defendant to prove that the plaintiff, prior to the enactment of St. 1855, c. 215, and for several years previous, had been engaged in the illegal traffic in intoxicating spirits. Such evidence was wholly irrelevant, and had no logical or legal tendency to prove any matter in issue at the trial. The defendant was bound to show either that the liquors contained in the wagon were actually held for some illegal purpose, or that he was at the time of the seizure of the property able to obtain reasonable proof that the plaintiff or his servant was keeping or transporting the liquors in violation of the provisions of the statute. Jones v. Root, 6 Gray, 435. Mason v. Lothrop, 7 Gray, 354. But the questions put to the plaintiff, and which he was compelled to answer, were inadmissible to show either of these grounds of defence. Proof that a party has on one occasion committed an offence, is incompetent to prove that he subseqently committed a distinct offence of a similar nature, except in a few cases where guilty knowledge or intention is of the essence of the charge. Such evidence raises no inference that the party committed the offence in question. Rose. Crim. Ev. (2d ed.) 81. Nor did the fact that the plaintiff had committed a violation of previous statutes prohibiting the sale of intoxicating liquors afford any just or legal reason for a belief by the defendant that he could obtain proof that he was again engaged in an illegal traffic.

It was suggested in behalf of the defendant that the questions objected to were admissible on cross-examination. But the answer to this is that they were put in order to elicit substantive proof in support of the defence, and not for the mere purpose of cross-examination. A party cannot, by putting questions to his adversary’s witness, introduce new facts to sustain his side of the case, which are not relevant to the substance of the issue. 1 Greenl. Ev. § 448.

3. The court also erred in admitting evidence that the defendant had reasonable cause to believe that the liquor in possession of the defendant’s servant was being illegally transported by him. This was not the point in issue. The real question was whether he had proof, or could obtain it, which would amount to reasonable evidence of the commission of such offence. Mason v. Lothrop, 7 Gray, 354.

4. Finally, it was an error to hold that the defendant was not bound to procure a warrant for the seizure of the liquor This is a duty clearly imposed on him by St. 1855, c. 215, § 13. If it were not so, it would follow that an officer might make a seizure of property without adopting any legal means of enforcing the forfeiture provided by statute. This is contrary to elementary principles. An officer who seizes property by authority of law must show that he has done all that is required of him in order to complete and fulfil the duty imposed on him, by virtue of which he was authorized to act; otherwise, he becomes a trespasser ab initia. This principle is applicable alike to civil and criminal processes. Tubbs v. Tukey, 3 Cush. 438.

Exceptions sustained.

* This and the subsequent cases for this term were argued at Boston, in February 1859, before Shaw, C. J., Dewey, Metcalf, and Bigelow, JJ.