State v. Lamont , 124 Me. 267 ( 1925 )

Wilson, J.

The respondent was indicted as a common seller of intoxicating liquors. The evidence shows four instances of actual sales to one person, a Deputy Sheriff, within three months. The respondent moved for a directed verdict of not guilty, which was denied. The jury returned a verdict of guilty. The case is before this court on respondent’s exception to the court’s refusal to direct a verdict in his favor.

The respondent contends that four distinct sales to the same person, each separated by some little period of time, is not sufficient to warrant a verdict of guilty of the offense charged.

Under a former statute, Chap. 255, Public Laws, 1856, Sec. 14, any person who was proven to have made three sales of intoxicating liquor within the time laid in the indictment, or twice convicted of unlawful sales, and who should commit a third offense under the Act prohibiting the sale of intoxicating liquors within six months of the last conviction, should be deemed a common seller. The Legislature presumably adopting this arbitrary rule in view of that followed in the case of common barrators and common gamblers. Bish. Crim. Law, Vol. II., Sec. 65, 3; Bish. Statutory Crimes, Sec. 879; Com. v. Tubbs, 1 Cush., 2.

Since the repeal of the above act, however, the court has refused to follow this arbitrary rule and has held that no specific number of sales was necessary or conclusive. State v. O’Connor, 49 Maine, 595; but it was for .the jury to determine from all the evidence whether the respondent could be said to be habitually and continually engaged in selling liquor in distinction from individual sales, — one who sells freqúently, whenever applied to, customarily, in distinction from isolated sales.

These elements may be proven without any evidence of actual sales; or one or more sales under the surrounding or accompanying circumstances may be sufficient to warrant a jury in finding a respondr ent guilty of this offense.

In the .case at bar, there was evidence in connection with the actual sales from which the jury might fairly have inferred that this respondent had a ready source of supply and in considerable quantity, not only of alcohol, but sometimes could obtain Scotch whiskey; that a method of communication was agreed upon whenever the complainant should want to purchase and that the respondent was also delivering not only to the complainant, but to others; and that during the period of these sales, he did not appear to have any other regular business, if otherwise engaged at all.

We think the presiding Justice was warranted in submitting the case to the jury under appropriate instructions, which we must assume were given.

Entry will be:

Exceptions overruled.

Judgment for the State.