State v. Burroughs , 1881 Me. LEXIS 127 ( 1881 )

Appleton, C. J.

This is a complaint for search and seizure, appealed from the municipal court of Augusta, and is brought here on exceptions to the rulings of the justice presiding at nisi prius.

I. The judge in his charge, said to the jury, "You have a right to consider, however, in this case, the question whether it requires the same amount of proof, the same weight to fasten upon a man the crime of selling intoxicating liquors, or keeping them with intent to sell, in view of the penalty attached, as it would to fasten upon him a higher crime for which the penalty was much severer.”

Here is no rule of law; given. The jury were told they were at liberty to consider the criminality of an offence, and the severity of its punishment as circumstances bearing upon the greater or lesser probability of its commission. It was left to them to determine the effect of those as of all other facts and circumstances in proof bearing on the guilt or innocence of the respondent.

2. Bottles, glasses, and measures identified as found in the defendant’s shop, were received in evidence, to the introduction of which, the objection was made that their seizure was unauthorized by the warrant. They were or might be implements used in unlawful traffic. They were admissible in evidence however obtained. Their evidentiary force was for the jury. They are nevertheless articles of evidence, even if procured by an unauthorized and illegal search. State v. Plunkett, 64 Maine, 536 ; State v. McGlynn, 34 N. H. 422; State v. Flynn, 36 N. H. 64; Com. v. Dana, 2 Met. 329.

Exceptions overruled.

WaltoN, Barrows, Daneorth and Peters, JJ., concurred. Libbey, J., did not concur.