Commonwealth v. Carroll , 81 Mass. 409 ( 1860 )

Metcalf, J.

The jury were correctly instructed that if they were satisfied, beyond a reasonable doubt, that the defendant had, in or about’ the months named, made a sale of intoxicating liquor to each of the persons named in the indictment, they would be authorized to render a verdict of guilty. And the testimony, if believed, was sufficient to authorize such a verdict. Proof of several sales is proof of each of them; but when one only is alleged, the defendant can be convicted of one only.

Testimony of a witness that a sale of liquor was made to him is, if believed, sufficient evidence of a sale. It is not necessary that he should also state the words and acts which constitute a contract of sale. The particulars of the transaction may be drawn from him by cross-examination: and if they do not show a sale, the charge of selling will not be sustained.

The sales in this case must be taken to have been illegal. It was for the defendant to show, if such was the fact, that he was authorized to make them.

The objection that this conviction could not be pleaded and proved in bar of another indictment for the same offences cannot be sustained. The same law, which allows a jury to convict a defendant of an offence alleged to have been committed on one day, by proof that he committed it on another day, also secures him against another conviction for the same offence on a second indictment alleging it to have been committed on a day different from that alleged in the first. It also secures him from another conviction of the same offence on a second indictment that varies from the first in any other immaterial allegation. If this defendant should be indicted again for a sale of liquor to Buggies or to Waterhouse, and should plead in bar the conviction in this case, such plea would be sustained by the production of the record, and by showing that the same evidence, which would be necessary to support the second indictment, was admissible and sufficient to warrant a conviction upon this indictment. A prima facie case would thus be made out for the defendant, and it would thereupon be incumbent on the Commonwealth to show that the charge contained in the second indictment was not the same as that charged in this. Regina v. Bird, 5 Cox C. C. 11, and 2 Denison, 94. Archb. Crim. Pl. (13th ed.) 118, 122. 2 Gabbett Crim. Law, 330. 2 Petersd. Ab. 737 & seq. 3 Greenl. Ev. § 36. See also Commonwealth v. Conant, 6 Gray, 483, 484; People v. M’Gowan, 17 Wend. 386

Judgment on the verdict.