Commonwealth v. McCauley , 105 Mass. 69 ( 1870 )

Morton, J.

1. By the fair construction of the bill of exceptions it appears that the defendant, after filing his special plea in bar, introduced in evidence, in support of it, the record of a former acquittal in the superior court, upon an indictment for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors. If no issue, either in law or to the country, was taken on this plea, which does not distinctly appear, we think that by going to trial upon his plea, without objecting that issue had not been joined on it, the defendant waived the informality. This clearly distinguishes the case from the case of Commonwealth v. Merrill, 8 Allen, 545, cited by the defendant.

-2. The only question, therefore, open under the bill of exceptions, is whether the ruling that the former acquittal was not a bar to this indictment was correct, and of this we have no doubt. The offence of maintaining a common nuisance, by keeping a tenement used for the illegal sale or keeping of intoxicating liquors, is a distinct offence from that of keeping intoxicating liquors with intent to sell the same. Proof of the facts necessary to sustain this indictment would not be sufficient to sustain the former indictment, and an acquittal upon the former is not a bar to this. Commonwealth v. Bubser, 14 Gray, 83. Commonwealth v. Donnell, 8 Allen, 548. Commonwealth v. Hogan, 97 Mass. 122.

Exceptions overruled.