Commonwealth v. Sullivan , 156 Mass. 487 ( 1892 )

Knowlton, J.

It is well settled that a district court or a trial justice may either try and acquit, or convict, a person charged with the offence of keeping a tenement for the illegal keeping or illegal sale of intoxicating liquors, or may examine the case for the purpose of determining whether there is probable cause to believe him guilty, and, if so, may order him to recognize for his appearance before the Superior Court. Pub. Sts. c. 101, §§ 6, 7; c. 154, § 18. Commonwealth v. Harris, 8 Gray, 470. Commonwealth v. Hamilton, 129 Mass. 479. Whether in a particular case the court took jurisdiction, or merely conducted a preliminary examination, must be determined from the record of its proceedings.

In the present case, the record states that the defendant is discharged because “it does not appear that there is probable cause to believe defendant guilty.” This language indicates that the court did not assume to take final jurisdiction, but was simply doing the preliminary duty of determining whether the defendant should be held for appearance before a higher tribunal. In Commonwealth v. Hamilton, 129 Mass. 479, it was expressly held that such a record does not show an acquittal which will bar conviction on an indictment in the Superior Court.

While the defendant is not bound by what was said by a stranger found on the premises, a remark made, apparently in his hearing, in reference to the approach of the officers, and his conduct in immediately afterwards “ grabbing ” a bottle of whiskey, and carrying it from the bar-room and breaking it, may well be considered together in connection with other circumstances tending to show his guilt. The evidence was rightly admitted. Commonwealth v. McHugh, 147 Mass. 401. Commonwealth v. Downey, 148 Mass. 14. Commonwealth v. Gillon, 148 Mass. 15.

Exceptions overruled!.