Commonwealth v. Maloney , 82 Mass. 20 ( 1860 )

Hoar, J.

1. The circumstantial evidence as to the occupation of the defendant’s shop, and the manner of conducting business there, was clearly admissible in connection with other evidence, under the count in the indictment, charging him with being a common seller. Commonwealth v. Tubbs, 1 Cush. 2 But as upon that count a nolle prosequi was subsequently entered, its admission became immaterial.

2. The allegation of time in an indictment for a single sale of intoxicating liquors is not material and need not be proved as laid; and this rule is not affected by the fact that the indictment also includes a count against the defendant as a common seller.

3. It is no objection against the conviction of the defendant for two distinct sales, to show, under an indictment in which that offence is properly set forth, that the sales were made under such circumstances as would have made them evidence under an indictment for a nuisance. Commonwealth v. Bubser, 14 Gray, 83. Commonwealth v. Hudson, 14 Gray, 11.

4. If the evidence offered is sufficient to support the allegations in the indictment, the presumption is that the offences proved are the same as those charged in the indictment; and it would not be competent for the jury to find them not to be the same, upon no other evidence than the fact that the time proved did not correspond with that averred, the variance being immaterial. Commonwealth v. Burke, 14 Gray, 81.

Exceptions overruled.