Commonwealth v. Carolin , 84 Mass. 169 ( 1861 )

Merrick, J.

In the case of Commonwealth v. Welsh, 1 Allen, 1, it was held, upon an indictment like the present, that the conviction of the defendant was not xvarranted by proof that he kept the place named in it for the purpose of making illegal sales of intoxicating liquors; but that it would have been sufficient to support the indictment to prove that he kept and used the tenement either for the keeping for illegal sale, or for the illegal sale, of intoxicating liquors. The distinction is between merely keeping, and keeping and using, the tenement for the illegal purpose. The instructions to which the defendant excepted made it necessary to his conviction that the government should show both the keeping and the use of the tenement either for one or the other of the illegal purposes named in it. This was in conformity to the rule established by the decision in Commonwealth v. Welsh, and the exceptions therefore must be overruled.^*

* A similar decision was made at the same term in Commonwealth vs. William Harrison. N. St. J. Green, for the defendant.