Commonwealth v. Neylon , 159 Mass. 541 ( 1893 )

Allen, J.

Though the record title to the premises was not in the defendant, but in his six children, and though one of the defendant’s sons paid the United States internal revenue tax on the business of retail liquor dealer on the premises, there was other evidence tending to show that the defendant had the responsible charge of the premises, and that he lived there and had given directions that the real estate should be taxed to him. There was also some evidence tending to show that he kept intoxicating liquors there with intent to sell the same within the time specified in the indictment; especially the evidence of a declaration by him to searching officers, that he had a trap which would hold a thousand gallons of liquor, but they could not find it. The evidence of finding whiskey in the house on August 30, which was twenty-two days after the latest date specified in the indictment, was not too remote in point of time, to be competent. Commonwealth v. Finnerty, 148 Mass. 162. Commonwealth v. Hurley, 158 Mass. 159. Commonwealth v. Cotton, 138 Mass. 500. Commonwealth v. Kelley, 116 Mass. 341. It would be open to argument whether the evidence pointed to a keeping of the whiskey by the defendant rather than by his son, but upon this point no doubt the instructions of the presiding justice were full and distinct. We are not informed in what part of the house the bottle of whiskey was found, but the jury may have been. The evidence of finding a trap in the barn on October 19, though somewhat remote in point of time, was significant in view of the evidence of the'defendant’s declaration that he had a Concealed trap which would hold a large quantity of liquor. The jury might infer that the trap found was the same one referred to by the defendant on August 3, as a trap which he then had ; and that on August 3 he had liquors concealed therein which he intended to sell.

The evidence as to the bill of parcels was sufficient to warrant a finding that it had been received by the defendant. This alone might have no tendency to incriminate him, but the witness Garvey, who had made out the bill of parcels, and probably sent it to the defendant, testified that since May 1,1892, the defendant had been in Pierce’s place of business in Worcester perhaps five times, and that he (the witness) had never had any talk with the defendant nor overheard any talk by the defendant about the bill. If any one of these visits to Pierce’s place of business was after the reception of the bill, — and this was not disputed at the argument,—the defendant’s omission to speak of the bill would have some tendency to show an assent to its correctness. It must now be assumed that the charge to the jury, which contained “ full and careful instruction in regard to said evidence,” included all proper cautions not to draw any inference against the defendant from the existence of the bill unless they should find that he, by his silence after receiving it under circumstances when naturally he would have spoken, acknowledged by implication that the liquors therein mentioned had been bought by himself; and in the opinion of a majority of the court no exception can be maintained to the admission of the evidence.

Exceptions overruled.