Commonwealth v. McNamee , 112 Mass. 285 ( 1873 )

Ames, J.

The charge of being a common drunkard can be substantiated, without proving that the person accused of it has been constantly drunk during the time covered by the complaint, or even that his drunkenness was a matter of daily occurrence. The law nowhere undertakes to define how many instances of intoxication, in any given time, shall be deemed sufficient to fix upon a man the imputation of being a common drunkard. The use of the word “ common ” imports frequency, and it has been held that to convict a man upon such a charge, it must be shown that he is an habitual drunkard. Commonwealth v. Whitney, 5 Gray, 85. In this, as in all other criminal cases, the burden of proof is upon the prosecution, and the question whether the evidence offered satisfies the jury beyond reasonable doubt of the truth of the charge, is for them to settle. It does not appear, however, that he is entitled to a specific ruling that he is affirmatively to be presumed sober on days as to which no evidence is offered. What he is entitled to is the general presumption of innocence of the charge preferred against him. His rights are sufficiently protected if the jury are instructed that that presumption stands good against everything except what is specifically-proved against him beyond reasonable doubt. That instruction was distinctly given, and the effect of it was to leave the jury to determine whether the affirmative evidence before them, taken by itself, and leaving out of view entirely the days as to which there was no direct evidence, convinced them beyond reasonable doubt that the defendant’s intoxication was so frequent as to amount to habitual drunkenness. The remarks of the judge as to those days may have been somewhat deficient in clearness, but the rule finally given to the jury was correct.

Exceptions overruled.