Opinion
September 18, 1940.
M. Cohan H. Zarrow, for the defendant.
A.B. Cenedella, Assistant District Attorney, for the Commonwealth.
Exceptions sustained. The defendant, charged by complaint with unlawfully selling "articles for the prevention of conception," was convicted at a trial in the Superior Court before a judge sitting without a jury. The complaint was based upon G.L. (Ter. Ed.) c. 272, § 21, which provides in part for punishment by imprisonment or fine of any person selling "any drug, medicine, instrument or article whatever for the prevention of conception." The request of the defendant for a ruling that "where a statute prevents the sale of an article for a designated purpose, and where the said article has in addition a purpose which is legal, it must be presumed, in the absence of evidence to the contrary, that the sale of the article was for the legal purpose," was denied and the defendant excepted. The trial judge found specifically "as a fact that the articles sold by the defendant were for the prevention of conception." While as a matter of technical form the statement of law in the requested ruling in terms of presumption may be open to criticism, the statement was correct in substance as applied to the statute involved in the case in accordance with the decision made under the same statute in Commonwealth v. Corbett, ante, 7. The ruling requested was applicable to the evidence in the case. Its denial was prejudicial to the defendant. The specific finding of the trial judge did not render the request immaterial. This finding does not import a recognition by the trial judge of the principle of law embodied in the requested ruling. Since, in the opinion of a majority of the court, the exception to the denial of this request for a ruling must be sustained, other exceptions need not be considered. The questions raised thereby may not be presented in the same form at another trial.