Commonwealth v. Marino , 261 Mass. 460 ( 1927 )

Rugg, C.J.

These are two complaints wherein the defendant is charged with making two sales of intoxicating liquor to a named person on two successive days in May, 1927. There was categorical testimony to the effect that these two sales were made, as charged, by the defendant in person.

The evidence offered by the defendant tending to show that upon proper warrant the defendant’s premises were searched shortly after the alleged sales without finding any intoxicating liquor or any implements indicative of traffic in such liquor was excluded rightly. Such evidence was utterly without probative value touching the offences charged. See Commonwealth v. Russell, 160 Mass. 8. Cases like Commonwealth v. Johnson, 199 Mass. 55, Commonwealth v. Coyne, 228 Mass. 269, and Commonwealth v. Fed, 235 Mass. 562, are too plainly distinguishable to require discussion.

The defendant testified in her own behalf, denying that she made the sales as charged and stating that at the times alleged, and for a considerable period both before and after, she was ill and was not in her store at the time of day when, according to the testimony introduced in behalf of the Commonwealth, the sales were made but that on the contrary her stepdaughter had charge of the store. This testimony was corroborated. In these circumstances the judge rightly charged the jury, in substance, that, the defendant having admitted that she owned the store, it was for the jury to say whether “some one other than the defendant sold the liquor. If so, and the said sale was made by the agent, with the defendant’s knowledge or consent, then the defendant would be guilty of the sales made by the agent.” This was correct. The judge rightly refused the requested instruction that the only question was whether the defendant sold to the person named in the complaint. Commonwealth v. Nichols, 10 Met. 259.

Exceptions overruled.