COMMONWEALTH vs. SAMUEL SLAVSKI. SAME VS. SAME.

RUGG, C.J. These are two criminal complaints, one charging the defendant with keeping and maintaining a tenement used as a liquor nuisance at Ayer in our county of Middlesex during the period of three months before October 5, 1922, and the other charging him with keeping intoxicating liquor for sale contrary to law at said Ayer on October 11, 1922.

1. There was no error in requiring the defendant to go to trial on both complaints at the same time. As long ago as 1842 it was said by Chief Justice Shaw to be a common practice to include in one indictment several distinct substantive offences of the same general character where the mode of trial and nature of punishment were the same, and thus to compel a defendant to a single trial, subject always to the duty and power of the court to order the prosecutor to elect on which of the counts the defendant shall be brought to trial if necessary for the protection of his substantial rights. Carlton v. Commonwealth, 5 Met. 532. This practice has continued up to the present. Commonwealth v. Mullen, 150 Mass. 394, and cases there collected. Commonwealth v. Dow, 217 Mass. 473. Commonwealth v. Bishop, 165 Mass. 148. Lebowitch, petitioner, 235 Mass. 357, 363. Commonwealth v. Szczepanek, 235 Mass. 411. Commonwealth v. Dyer, 243 Mass. 472. See Castro v. Regina, 6 App. Cas. 229, and Rex v. Thompson, [1914] 2 K. B. 99.

The crimes charged in these two complaints might have been set forth by two separate counts in one complaint. Commonwealth v. Bickum, 153 Mass. 386. There is no

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difference in effect on the substantive rights of the defendant and his just protection in every material particular between bringing him to trial upon several counts in one indictment or one complaint, on the one hand, and, on the other hand, bringing him to trial upon several indictments or complaints, provided in each instance the divers crimes thus charged are such that they might have been charged in separate counts in the same indictment or complaint, and settled by a single trial without requiring the prosecutor to elect. Procedure of this nature ought not to depend merely upon an accident of pleading. When no substantial rights of a defendant are at stake, the interest of the public requires that the guilt of one accused of crime shall be decided as expeditiously and inexpensively as is reasonably practicable. Adherence to an ancient practice as to separate trials is no longer demanded in view of the modern system of criminal pleading. It must be held that Commonwealth v. Bickum, 153 Mass. 386, no longer states the correct practice on this point. Its authority was shaken by Commonwealth v. Seeley, 167 Mass. 163, and by Commonwealth v. Rogenthal, 211 Mass. 50. It was said in the latter case that " No sound reason can be given why several indictments charging different crimes arising out of a single chain of circumstances should not be tried together. Where several offenses might have been joined in one indictment, and would be proved by substantially the same evidence, or evidence connected with a single line of conduct, and grow out of what is essentially one transaction, and where it does not appear that any real right of the defendant has been jeopardized, it would be a refinement not demanded by the law or by justice to require in all instances a separate trial, simply because separate indictments had been found for each offense." That principle is applicable to the case at bar.

It is the heavy obligation of the trial court sedulously to take care that the defendant is not confounded in his defence, that the attention of the jury is not distracted, and that in no aspect are the substantive rights of the defendant adversely affected, by requiring him to proceed to trial on

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separate complaints for different offences or on separate counts for different offences in one complaint.

Nothing on this record affords an indication that the, defendant was in any way embarrassed or prejudiced by requiring him to go to trial upon both complaints. It was a matter of indifference, so fax as concerned the genuine rights of the defendant to a fair trial, whether the pleading was in one form or the other. His position was in no respect worse than it would have been if both offences had been charged in distinct counts in a single complaint. No miscarriage of justice has occurred.

2. The bill of exceptions states that the only evidence offered " to prove the alcoholic contents of the 'moonshine' were four certificates " in the form prescribed by G. L. c. 138, s. 55, signed by the analyst of the department of health of analyses made pursuant to s. 54 of the same chapter.

Confessedly the certificates are made competent evidence by statute. The objection to the admission of the evidence, which has been argued, relates to the constitutionality of the statute. The pertinent sections require inspection and analysis of all samples of liquors sent by designated officers to the department of public health, provided it is satisfied that the analysis requested is to be used in connection with the enforcement of the laws of the Commonwealth. A signed statement in the form prescribed of the percentage of alcohol by weight at sixty degrees Fahrenheit contained in such samples " shall be prima facie evidence of the composition and quality of the liquors to which it relates."

The statute is assailed as violative of that part of art. 12 of the Declaration of Rights to the effect that, in prosecutions for crime, " every subject shall have a right . . . to meet the witnesses against him face to face." It was said in Commonwealth v. Richards, 18 Pick. 434, at page 437, that " That provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or what was not competent evidence to be given face to face according to the settled rules of the common law." Dying declarations and testimony given

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at an earlier trial between the same parties by a witness since deceased were there stated as classes of evidence admissible notwithstanding the constitutional provision. To the same effect is Mattox v. United States, 156 U. S. 237.

Substantially the same guarantee is found in art. 4 of the Amendments to the Constitution of the United States as in art. 12 of our Declaration of Rights. In Kirby v. United States, 174 U. S. 47, 54-61, the question was as to the constitutionality of an Act of Congress providing in effect that on the trial of a person charged with feloniously and knowingly receiving stolen postage stamps with intent to convert them to his own use, judgment of conviction of the principal felon should be prima fade evidence that the property actually was stolen. It was held that such a statute violated the provision of the Sixth Amendment to the Constitution Of the United States that " in all criminal prosecutions the accused shall . . . be confronted with the witnesses against him." See in this connection Commonwealth v. Knapp, 10 Pick. 477, 482, 484. In Dowdell v. United States, 221 U.S. 325, at page 330 are these words referring to the same subject: " It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination."

The right of one charged with crime to be confronted by his accusers was not created and introduced as something new in criminal procedure by this constitutional provision, but an existing part of the law of the land was thereby secured against future change except by the people themselves. The purpose of this constitutional provision was to put beyond the possibility of abolition by legislative action the principle already established as a part of the common law that witnesses should confront the accused. That principle was adopted as a constitutional guarantee, but with the well recognized exceptions which were a part of the principle and essential to its practical vitality. Dying declarations and the reproduction of testimony previously given by a witness now deceased have already been mentioned.

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One of the acknowledged exceptions to the face to face rule of evidence is that public records are competent evidence when of probative value respecting an issuable fact. That is an ancient principle of the common law, recognized at the time of the adoption of the Constitution. Wigmore on Ev. s.s. 1395-1398. It cannot be thought that the Constitution was intended to close the door to the legislative department of government to establish new public records with like probative value. Existing public records did not become rigid for all time for evidential purposes. Power to add to the varieties of public records under the principles of law prevailing at the time of the adoption of the Constitution is conferred upon the General Court under the grant to make, ordain and establish all manner of wholesome and reasonable laws not repugnant to the Constitution. There is analogy in this respect to the trial by jury preserved in all its essentials by the Constitution, which may be regulated by the Legislature as to details not impairing its essential integrity. Bothwell v. Boston Elevated Railway, 215 Mass. 467.

At common law and at the time of the adoption of the Constitution the admission in evidence of dying declarations was confined to prosecutions for homicide. Thayer v. Lombard, 165 Mass. 174. Wigmore on Ev. s. 1432. That rule was extended to include prosecutions for abortion, and the statute to that end has been regarded as valid. G. L. c. 233, s. 64. Commonwealth v. Thompson, 159 Mass. 56, 59. Commonwealth v. Smith, 213 Mass. 563. Commonwealth v. Turner, 224 Mass. 229. Commonwealth v. Wagner, 231 Mass. 265.

It has been held that weather records kept by officers under the law, Commonwealth v. Dorr, 216 Mass. 314; Evanston v. Gunn, 99 U. S. 660; the records of a postmaster, Gurney v. Howe, 9 Gray, 404; town and city records of enlistments in military service, Hanson v. South Scituate, 115 Mass. 336; certificate of discharge from military service on surgeon's certificate of disability, Fitchburg v. Lunenburg, 102 Mass. 358; return of enumeration of proprietors by overseers, Pells v. Webquish, 129 Mass. 469; record of

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certificate of marriage as showing residence of the husband, Shutesbury v. Hadley, 133 Mass. 242; copy of public documents, Whiton v. Atlantic City Ins. Co. 109 Mass. 24; State register of soldiers and municipalities to which credited, Worcester v. Northborough, 140 Mass. 397; record of baptism showing date of birth kept by parish priest, Kennedy v. Doyle, 10 Allen, 161; map published by legislative authority, Commonwealth v. King, 150 Mass. 221; cause of death shown in public record of deaths, Shamlian v. Equitable Accident Co. 226 Mass. 67; Broadbent's Case, 240 Mass. 449; public record of birth certificate, Taylor v. Whittier, 240 Mass. 514; certificate of an acting comptroller of currency of papers on file showing numerous facts as to an insolvent national bank under a federal statute, Weitzel v. Brown, 224 Mass. 190; marriage records kept under the authority of our statutes, Derinza's Case, 229 Mass. 435, 442, all are admissible in evidence as public records under this general principle.

On the other hand, it has been held that the report of an autopsy of a medical examiner giving his opinion as to the cause of death, Jewett v. Boston Elevated Railway, 219 Mass. 528; Commonwealth v. Borasky, 214 Mass. 313, 317; the report of an investigation by State fire marshal as to the cause of a fire, P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275, 279; report of an inquest as to the cause of death, Carney v. Boston Elevated Railway, 219 Mass. 552; register of a draw tender descriptive of matters not within his personal knowledge, Butchers, Slaughtering & Melting Association v. Boston, 214 Mass. 254; copy of a card showing examination and record concerning a purely voluntary activity of a public board, Fondi v. Boston Mutual Life Ins. Co. 224 Mass. 6; notes kept by city engineer voluntarily as to width of street, Allen v. Kidd, 197 Mass. 256; entry as to cause of fire made by chief of fire department, Cawley v. Northern Waste Co. 239 Mass. 540, 545, have been held to be inadmissible.

In Heike v. United States, 112 C. C. A. 615; 192 Fed. Rep. 83, the defendants were indicted for entering for customs cargoes of sugar at less than their true weight. It was held

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that the admission of dock books, kept by weighers as the result of their observations of scales at the time of weighing, as public records, did not contravene the constitutional guaranty. State v. Dowdy, 145 N. C. 432. Johns v. State, 55 Md. 350. Reeves v. State, 7 Cald. 96, 101. State v. Smith, 74 Iowa, 580, 583. Tucker v. People, 122 Ill. 583, 593. State v. Donato, 127 La. 393.

The discussion in many of these decisions relates to the general principles of the law of evidence and the interpretation of statutes. The principle which seems fairly deducible from them is that a record of a primary fact, made by a public officer in the performance of official duty is or may be made by legislation competent prima facie evidence as to the existence of that fact, but that records of investigations and inquiries conducted, either voluntarily or pursuant to requirement of law, by public officers concerning causes and effects involving the exercise of judgment and discretion, expressions of opinion, and making conclusions are not admissible in evidence as public records. This principle may not be universally applicable and there may be exceptions, but it appears to be available in general as a practical working rule.

The determination of the percentage of alcohol in liquor at a specified temperature is the ascertainment of a fact by well recognized scientific processes. Chemical action and measurement in such an analysis do not depend in general upon the quickness of apprehension, retentiveness of memory, temperament, surmises or conjectures, of the individual. The admission in evidence of the record of such a fact made by a public officer pursuant to statutory obligation would be as likely to be accurate as many of the public records which have been held to be admissible. There would seem to be as little likelihood of variation of result in such an analysis between different chemists as in the observation of the weather, enumeration of proprietors, or the notation of the weights on scales by other classes of public officers. The General Court may have felt that it was wise and just with reference to owners of liquor and prospective defendants, as well as to the general public, to provide for an impartial

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analysis by a public officer in order that the fact of alcoholic content in liquor seized might be established according to a scientific standard in which confidence might be reposed.

It is familiar law that every rational presumption is made in favor of the validity of a statute. Its conflict with the Constitution must be established beyond reasonable doubt before the court can refuse to enforce it. Perkins v. Westwood, 226 Mass. 268, 271. The present statute makes the record only prima facie evidence of the composition and quality of the liquors to which it relates. Duggan v. Bay State Street Railway, 230 Mass. 370, 378, 380.

We are of opinion that the statute here attacked cannot be said to transcend the power of the Legislature or to be in conflict with art. 12 of the Declaration of Rights. To the same effect is Bracy v. Commonwealth, 119 Va. 867.

3. There was no error in denying the several requests for rulings. The first was not strictly applicable to a, complaint for maintaining a liquor nuisance. There was evidence sufficient to support a verdict of guilty on both complaints.

(a) While proof of a single sale of intoxicating liquor standing alone and unsupported by other circumstances will not warrant a conviction for maintaining a nuisance, Commonwealth v. Hagan, 152 Mass. 565, and cases there cited, a request to that effect was inapplicable to the evidence in the case at bar. There was ample proof to support a finding that selling intoxicating liquor was a business conducted on the defendant's premises during the period alleged. Commonwealth v. Coolidge, 138 Mass. 193. A judge cannot be required to charge upon fragmentary parts of the evidence. Ayers v. Ratshesky, 213 Mass. 589, 593. Commonwealth v. Shea, 160 Mass. 6.

(b) Mere existence of the relation of father and son is not enough to show agency. Commonwealth v. Keenan, 152 Mass. 9. Weiner v. Mairs, 234 Mass. 156. McGowan v. Longwood, 242 Mass. 337. But where a minor son makes his home with his father in a tenement under the general control of his father and is not shown to have been emancipated or to have any independent occupation, there is foundation for the inference that the father is principal and

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the son agent as to the acts of the son with reference to transactions of this nature affecting the character of the household and not apparently done secretly or furtively as to the one in control of the home. Evidence of the acts of the minor son of the defendant as to the sale of intoxicating liquor within the curtilage of the home rightly was admitted in view of all the circumstances.

(c) There was evidence sufficient to warrant a finding that the minor son of the defendant living in his home was authorized by the defendant to make the sale which was the subject of the second complaint. On this point the case at bar is within the authority of numerous decisions. Commonwealth v. Hyland, 155 Mass. 7. Commonwealth v. Downey, 148 Mass. 14. Commonwealth v. Gillon, 148 Mass. 15. Commonwealth v. Coughlin, 14 Gray, 389. Commonwealth v. Kozlowsky, 243 Mass. 538. See Tornroos v. Autocar Co. 220 Mass. 336, 341, and Sousa v. Irome, 219 Mass. 273.

(d) The instruction that the defendant would not be responsible for the unlawful act of his minor son unless it was done by his consent was given in connection with the refusal to grant a request that no such responsibility would arise unless the " act was done by the direction of the defendant." The request rightly was denied. While simple consent of the defendant to the unlawful act of his minor son, dissociated from all other facts, would not be enough to make the father criminally responsible for such act, it would be sufficient provided there were attendant conditions warranting an inference that the act thus consented to was within the scope of general authority conferred upon the son by the father. Commonwealth v. Reynolds, 114 Mass. 306. Such authority may arise by implication from circumstances as well as by express direction, Smith v. Jordan, 211 Mass. 269.

(e) It must be presumed, in the absence of anything in the exceptions to show the contrary, that full instructions were given on the general subject of criminal responsibility of a principal for the conduct of an agent acting within the scope of his authority. Silver v. Graves, 210 Mass. 26, 30.

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Nesson v. Adams, 212 Mass. 429, 431. Curlianis v. Reid, 226 Mass. 185. It follows that the sale by the minor son to O'Gara might have been found to have been authorized by the defendant.

(f) It is assumed without deciding that even. under the Eighteenth Amendment to the Constitution of the United States the jury must have been satisfied beyond a reasonable doubt that the defendant kept intoxicating liquor with intent to sell the same within this Commonwealth. Commonwealth v. Blood, 11 Gray 74. But there was no error in denying the ninth request because in its context the request accentuated a distinction between the personal conduct of the defendant and that of his agent. Again, it must be presumed, in the absence of anything to indicate the contrary, that full and accurate instructions were given as to the burden of proof. There was no error in the denial of the several requests for instructions.

Exceptions overruled.