
    Commonwealth vs. James McHugh.
    Worcester.
    October 1, 1888.
    October 13, 1888.
    Present: Mokton, C. J., Devens, W. Allen, C. Allen, & Knowlton, JJ.
    
      Sale of Intoxicating Liquors — Evidence — Res Gestos.
    
    At the trial of a complaint for unlawfully keeping for sale intoxicating liquors, there was evidence that an officer entered the defendant’s kitchen and there saw upon the table a bottle which appeared to contain whiskey, and a tumbler, whereupon a third person, in the presence of the defendant and without any objection on his part, threw the bottle out of the window. Held, that the evidence was admissible.
    Complaint to the Central District Court of Worcester, alleging that the defendant unlawfully did keep for sale intoxicating liquors.
    At the trial in the Superior Court, on appeal, before Blodgett, J., evidence was introduced, against the objection of the defendant, that, as officers entered the kitchen of the defendant, one Comford, who was present, took a bottle, which seemed to have whiskey in it, from a table, upon which there was also a tumbler, and threw the bottle out of the window, the defendant then saying and doing nothing. The defendant contended that the evidence was inadmissible, unless the government should first connect Comford with the defendant, by showing that there was between them some relationship, as of master and servant, or that the defendant approved, ratified, or authorized the act of Comford. The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      J. E. Sullivan, for the defendant.
    
      A. J. Waterman, Attorney General, for the Commonwealth.
   By the Court.

The fact that the officers, upon entering the defendant’s kitchen, saw upon the table a bottle which appeared to contain whiskey, and a tumbler, was clearly competent. It was also competent to show what became of it, as a part of the res gestee, and to account for not producing it in court. Besides, the fact that the defendant permitted a person present to throw it out of the window, without any objection, is a significant indication that he did not have the bottle of whiskey for any innocent purpose.

Exceptions overruled.  