State v. Dodge , 78 Me. 439 ( 1886 )

Daneorth, J.

This case presents the question as to the sufficiency of an indictment founded upon R. S., c. 17, §1. If sustained, it must be under the first clause of the section, which so far as necessary for the case, reads as follows, viz.: " All places used . . for the illegal sale or keeping of intoxicating liquors,” are common nuisances. By § 2, the keeper or maintainer of such nuisance shall be punished by fine or imprisonment.

The material part of the indictment charges that the defendant " did keep and maintain a common nuisance, to wit: A certain building . . . occupied by the said Manly Ellis Dodge, as a saloon and shop, and resorted to for the illegal sale of intoxicating liquors,” &c.

The statute declares buildings used for illegal sale or keeping, &c., nuisances. The indictment alleges that the building was resorted to lor that purpose. It is claimed that the two expressions mean the same thing. This can not be. Neither word has any technical meaning attached to it. Both must, therefore, bo construed in their ordinary and usual signification. The building may be, and is, used by the occupant or keeper. It is resorted to by other persons. If used for sales, it must be understood that sales are made by the keeper, or under his authority. If resorted to for that purpose, sales may or may not be made, and if made are supposed to be made by the persons so resorting, and here is no allegation that any sales were made, or if so, that they were made by the consent, or knowledge even, of the defendant. He is charged with keeping a saloon and shop. Other persons are charged with resorting to it for the purpose of illegal sales. If such sales are made the evil may be as great as though made by the keeper. But that is not the offence provided by the statute. Besides, he is not charged Avitli keeping the building for any such purpose, and should not bo punished for the wrong of others. Com. v. Stahl, 7 Allen, 304.

The case of State v. Lang, 63 Maine, 215, relied upon in support of the indictment, is not in point. It does not hold that the phrases " resorted to ” and " used for ” are of the same meaning, but rather that the proper construction of the statute under which that indictment was found, required the insertion of the words " used for ” before the words " illegal sale,” and not the words " resorted to,” and hence the words " used for ” were properly used in the indictment as more accurately expressing the intention of the statute. Since then, the statute has been changed so as to leave no doubt that the construction then given is the true one, and the indictment in the case at bar should have followed that. Com. v. Howe, 13 Gray, 26.

Exceptions and demurrer sustained. Indictment adjudged bad.

Peters, C. J., Walton, Emery, Poster and Haskell, JJ., concurred.