Commonwealth v. Taylor , 113 Mass. 4 ( 1873 )

Ames, J.

Prima facie evidence of a fact we understand to be such as in judgment of law is sufficient to establish the fact; or such as in the absence of all controlling or discrediting evidence is conclusive, and must be so considered by the jury. Kelly v. Jackson, (6 Pet. 622. It is such as remains sufficient, if not rebutted. United States v. Wiggins, 14 Pet. 334. Delivery is one of the elements of sale, and the attending circumstances may or may not be such as to convince the jury that there was a sale in fact. But this of course depends upon their estimate of the effect of all the evidence taken together. The rule established by St. 1869, c. 415, § 35, providing that under certain circumstances the mere delivery of intoxicating liquors shall be primd facie evidence of a sale, is confined to prosecutions under that statute. Commonwealth v. Lahy, 8 Gray, 459. Jones v. McLeod, 103 Mass. 58. Evidence of such delivery by the defendant, at his saloon, at various times, to various persons, was proper for the consideration of the jury; but there is no rule of law requiring them, in cases not arising under that statute, to find a verdict of guilty upon such evidence, even though it should stand uncontradicted. Its weight and effect are entirely for them to consider, and the law attaches to it no artificial or peculiar force. Upon this point, therefore, we find it necessary to sustain the exceptions.

There seems to be no ground for the claim that the payment of costs, in order to have the default taken off, can operate in any event as a bar to the prosecution. The other points relied upon by the defendant at the argument have been disposed of in Commonwealth v. Taylor, ante, 1. Exceptions sustained.