State v. McIntosh , 98 Me. 397 ( 1903 )

Wiswell, C. J.

The respondent was tried upon an indictment charging him with maintaining a common nuisance under R. S. (1883), c. 17, § 1.

In the course of his charge the presiding justice instructed the jury, in substance, that if they were satisfied beyond a reasonable doubt that the respondent had sold any intoxicating liquor during the period covered by the indictment, he would be guilty of maintaining a nuisance under the indictment, to which instruction an exception was seasonably taken. The respondent having been found guilty, brings the case to the law court upon this and other exceptions.

The instruction complained of ivas undoubtedly erroneous. One or more unlawful sales of intoxicating liquor in a place does not necessarily, and as a matter of law, make that place a common nuisance. The place must be habitually, commonly used for the purpose before it becomes a common nuisance. State v. Stanley, 84 Maine, 555.

We have examined the whole charge, which is made a part of the exceptions, to see if this instruction was not so limited and explained in other parts of the charge as to prevent any danger of a misconception upon the part of the jury as to what constituted the offense charged by the indictment. But while the offense was clearly and properly explained in other portions of the charge, we think that this instruction was given as a separate and independent proposition to such an extent that the jury would be warranted in believing that a single unlawful sale of intoxicating liquors by the defendant in his shop would make that shop a common nuisance under the statute, and the respondent guilty of maintaining such nuisance.

As this disposes of the case, it is unnecessary to consider the questions raised by the other exceptions.

Exceptions sustained.