Commonwealth v. Porter , 70 Mass. 426 ( 1855 )

,Metcalf, J.

The single ground taken by the defendant is, that he ought to have been acquitted, because the evidence showed that he was guilty of a higher offence than those with which he was charged; namely, that of being a common seller, in which offence those complained of were merged. Whether, by the common law, and without reference to § 7 of St. 1852, c. 322, this would be so, we need not inquire; for although, by § 12 of that statute, a common seller is subjected to a much greater punishment than is prescribed for single sales, and although three several sales are made sufficient to constitute a common seller, yet it is enacted in § 7, that “ two or more acts of violation of the provisions of this section ” [which prescribes the penalty for single sales] “ may be alleged in the same complaint or indictment, and be tried at the same time; and conviction thereon, or on any of them, shall operate upon the defendants in the same manner as if the actions had been upon separate complaints, and the convictions had at separate trials.” This provision is conclusive against the validity of these exceptions See Tuttle v. Commonwealth, 2 Gray, 505.

Exceptions overruled.