Commonwealth v. Whalen , 82 Mass. 23 ( 1860 )

Merrick, J.

The evidence respecting the manner in which the defendant’s house was fitted up with a bar, and furnished with decanters, glasses and other articles used in mixing and in the retail of ardent spirits, as well as the fact that in an adjoining cellar were casks containing various kinds of liquors, was properly admitted. It had a tendency to show the character and sort of business in which he was engaged, and thus to prove the allegations set forth in the indictment.

The instructions as to the evidence upon which it would be competent for the jury to convict the defendant, are not subject to any valid exception. It is conceded by his counsel that no objection could justly be urged against the charge of the court in relation to the general course of proceeding by which the defendant might be proved to have been a common seller during the time specified in the indictment. But it is insisted that the court should have adopted the request to instruct the jury that in order to be justified in finding him guilty on the ground that he had made three separate and distinct sales, it was incumbent on the Commonwealth to prove each of such sales as independent transactions by the same evidence, and as fully and satisfactorily, as if each of them had been specifically set forth in the indictment in separate counts. This particular request was not complied with; but the instruction actually given, namely, that if the jury were satisfied upon the whole evidence that the defendant had unlawfully made three single sales, they were authorized to find a verdict of guilty, was fully equivalent to it, because such unlawful single sales could only be proved in the same manner and by the same evidence which would be required if they had been or were the precise and specific subjects of accusation. Exceptions overruled