Commonwealth v. Brown , 149 Mass. 35 ( 1889 )

Field, J.

The complaint is for keeping and maintaining a tenement used for the illegal sale and the illegal keeping for sale of intoxicating liquors, from July 1,1887, to April 18, 1888. The defendant on December 6, 1887, received a license of the sixth class for the year ending May 1, 1888. The confession put in evidence related solely to sales made before the license was granted, and was the only evidence of sales made between July 1 and December 6, 1887.

The counsel for the defendant has argued but two questions: first, whether the evidence of the confession was sufficient to warrant the jury in finding the defendant guilty of maintaining the alleged nuisance before December 6,1887; and secondly, whether proof of “ merely one sale ” would support the complaint. As the jury may have found the defendant guilty of maintaining the nuisance before December 6, 1887, and not afterwards, the instructions in regard to the confession are material. The facts in evidence do not raise the question whether proof of merely one illegal sale of intoxicating liquors in a tenement, without any other evidence of an illegal keeping or of illegal sales of such liquors in the same tenement, would warrant a verdict of guilty on a complaint under the Pub. Sts. c. 101, §§ 6, 7.

The instructions given upon the evidence, apart from that of the confession, were, in substance, that frequent illegal sales by the defendant would be competent evidence on which he might be found guilty, and the evidence of the confession was to the effect that the defendant admitted that he was guilty of the offence charged in the complaint before he received a license, and not that he admitted that he had made but one sale. The instructions given upon the weight to be given to the evidence of the confession were substantially in accordance with the decisions in Commonwealth, v. Galligan, 113 Mass. 202 ; Commonwealth v. Sanborn, 116 Mass. 61; and Commonwealth v. Christie, 145 Mass. 232.

Exceptions overruled.