State v. Kaler , 56 Me. 88 ( 1868 )

Barrows, J.

In § 12, c. 33, Laws of 1858, the offence prohibited is the depositing or having in one’s possession intoxicating liquors with the intent to sell them in this State in violation of law, or with intent that the same shall be so sold by any person, or to aid or assist any person in such sale thereof. It is not necessary that the keeper shall intend to make the unlawful sale hipiself. The offence is complete where there is a keeping with the intent that an unlawful sale shall be made in this State by any person, or with the intent to aid or assist in such unlawful sale. And this keeping is a substantive offence; not (as the ingenious counsel for defendant would have it,) a matter of principal and accessary depending upon the question whether there is a personal intention to .sell or only a design to aid some one else in the unlawful sale. The keeper'is a principal offender ; and the offence of keeping with such intent is the same, whether the sale is to be made by the keeper or some one else. Accordingly, in § 14, which prescribes the course, of proceeding and the essentials of the complaint, it is not required that the complaint shall state by whom the intended sale is to be made,;—but only that they are kept and deposited in some place in this State by some person or persons "and that said liquors are intended'for sale within the State in violation of law.” The name of the person so keeping the liquors shall be stated in the complaint, and the officer serving the search warrant, if he find such liquors, shall arrest him and bring him before the magistrate for trial. The original section then proceeded as follows : — " if, upon trial, the Court, upon the evidence adduced, shall be of opinion that the liquors were so, as aforesaid, kept, deposited and intended for unlawful sale by the person or persons named in said complaint, he or they shall be found guilty thereof,” &c.

It might be argued that this clause, on account of the collocation of the words, should bé so construed as to authorize a conviction only when it appeared that the intended sale was to be made by the person or persons named in the complaint. Such a construction, however, would not fulfil the design of the statute, and out of abundant, and as it would seem needless precaution, it was therefore amended in 1867, by inserting after the word "complaint,” in the clause last quoted, the words "or by any other person or persons with his or their knowledge or consent.” But this adds nothing to the definition of the offence as contained in § 12. It was complete without this. Now, in the case at bar, it did appear upon the trial, and the jury were required by the instructions to find, "upon the evidence adduced,” that the respondent Kaler kept the liquors in his store, knowing that Meehan was making unlawful sale of them and intending to facilitate such unlawful sale by Meehan. This includes all the elements of the offence as described, not only in § 12, but in that clause of § lé, as amended in 1867, where the penalty is imposed.

But it is argued from the order in which the words stand, that the allegation " that said liquors then and there were, and now are intended for sale in this State by said Meehan and Kaler, in violation of law-,” conveys a charge that Meehan and Kaler were the expected sellers of the liquors. What if that idea is included ? And what if, as to Kaler, the evidence does not sustain it? There is a direct and plain charge against Kaler as well as against the other defendant, of a keeping of intoxicating liquors and an intention that the same shall be unlawfully sold in this State by somebody,— (Meehan and Kaler, to wit,) —but by whom sale was to be made it was unnecessary to allege, nor if alleged, to prove as alleged; for that portion of the allegation is neither essential to nor descriptive of the offence. Kaler committed the offence if ho had the liquors in his keeping, intending that the same should be sold within the State, in violation of law by anybody, — himself or another,—it mattered not which, — so that a variance in that respect between the allegation and the proof vitiates nothing. All the necessities of legal identity between the charge and the proof are fulfilled when the essential allegations are proved as laid. Thus, where an indictment alleged the commission of a robbery in a dwellinghouse of a person named, a variance as to the owner’s name was held immaterial, because it was not essential to the crime of robbery that it should have been committed in a dwellinghouse. Pye’s case, East’s Pleas of the Crown, 785. See also U. S. v. Howard, 3 Sumner, 12.

It is sufficient, in cases of this sort, if there be allegation and proof against the defendant of a keeping of intoxicating liquors, with an intention that the same shall be sold within this State in violation of law; and a variance between the allegation and the proof, as to the particular person by whom the defendant intends the sale shall be made, is an immaterial variance. Exceptions overruled.

Appleton, C. J., Cutting, Dickerson, Danforth and Tapley, JJ., concurred.