Commonwealth v. Ewig , 145 Mass. 119 ( 1887 )

Knowlton, J.

The contention between the parties upon these exceptions relates solely to the interpretation of the judge’s charge. The defendant excepted to the qualification of the last instruction which he had requested. He contends that the jury must have understood the judge as saying, that, if several persons buy liquor and divide it among themselves, even though the transaction is real and genuine, and do it with a purpose thereby to obtain their liquor more economically than to buy it of some one who is obliged to pay the government a license fee, and with an additional purpose to deprive in that way the government of a license fee which it would otherwise get, the transaction is unlawful. If that were the meaning of the instruction, it would be clearly wrong. To ascertain its true interpretation, let us revert to the circumstances under which it was given. The defendant had introduced evidence that he was one of a club organized for the distribution of liquor among its members. The Commonwealth contended that the club was organized to defraud the government “ of the revenue received from licenses for the sale of intoxicating liquor,” and that the books and records put.in evidence “ were not genuine, and were not the evidence of a genuine organization, and were founded in fraud and deceit, and were gotten up to cover up the illegal acts and transactions of the defendant.”

An important, if not the principal, question of the case was whether this was a real and genuine arrangement for the division of liquor among the owners of it, or was a mere pretence and device to cover up unlicensed sales. Very likely this question had been fully discusséd by counsel. The presiding judge gave both instructions requested by the defendant. In the first, he told the jury unqualifiedly that the distribution of liquor of a club among its members would not constitute a sale, even though they gave money in return for it. In the second, he told them that the distribution of liquor among themselves by the owners of it was not unlawful, whatever their intention might be. Having stated in their baldest form the propositions relied on by the defendant, upon the theory that the liquor was really distributed among the owners of it, he- apparently thought it proper to bring to the attention of the jury the rule applicable to the claim of the Commonwealth, that the division testified to was not real, but a mere sham and pretence, and he gave the qualification objected to, saying, “ It is not a violation of law for them if they unite in good faith in dividing it. If two persons buy a gallon of liquor and divide it among themselves, they act with impunity; ”—which was equivalent to saying, If it is a real and genuine division, and not a mere pretence to cover something else, it is lawful. And then, to state the other alternative, he added, “ But if this is a mere device to cheat the government out of its license fee, and prevent the due execution of law, it is not a protection, and the defendant does not act with impunity;” — meaning to say, If the transaction is not real, but is a mere form and device under cover of which to sell intoxicating liquor without a license, and so violate the law, it will not avail the defendant in this prosecution. The words “ to cheat the government out of its license fee ” can hardly mean anything else than “ to sell intoxicating liquor without a license; ” for the only license fee to which the government is entitled in connection with the delivery of liquors is for sales, and one cannot be cheated out of that which does not belong to him. In view of the attendant circumstances, we think the language of the instructions, taken together, was intended by the judge to be used, and was understood by the jury, in a sense which correctly represents the law.

Exceptions overruled ^*

* See St. 1887, c. 206.