Commonwealth v. Godley , 77 Mass. 454 ( 1858 )

Bigelow, J.

The court has heretofore held that an indictment charging a party with keeping and maintaining a building used for the illegal sale of intoxicating liquors, and so constituting a nuisance under St. 1855, c. 405, is not supported by proof that the defendant kept and occupied only a part of the building or a tenement in it, the residue being occupied by other persons. Commonwealth v. McCaughey, 9 Gray, 296. This decision went on the ground that as the less cannot be held to include the greater, the substantive fact charged was not proved, and that there was a variance between the allegation and the proof. The defendant, being charged with keeping and maintaining a building, was not shown to be guilty of that offence by proof that he only occupied a part of such building. A tenement is not necessarily an entire building. It often is only a part.

But the cases at bar are different. The proof in each case shows that the defendant occupied the entire premises. He therefore occupied the part used for the illegal purpose, and there is no variance. The averment is not vitiated by alleging that the party occupied more than he actually used for the unlawful purpose, though it would be otherwise if it averred keeping the whole and the proof was of keeping a part only. Every tenement is either a building or a part of a building, and by alleging the use and occupation of a tenement by the defendant, it is open to proof that the occupation was either of the whole or a part.

Besides; as a building may be a tenement, that is, may constitute a distinct and substantive estate occupied by a party, when the evidence shows that the whole is occupied by the defendant, it constitutes a tenement and is not misdescribed.

Exceptions overruled.