State v. Prescott , 67 N.H. 203 ( 1892 )

Smith, J.

The allegation that the defendant did “keep for sale one pint of cider,” is equivalent to an allegation that he kept one pint of cider with intent to sell the same, and it was unnecessary to allege further the intent. It is not necessary, in order to sustain an indictment, to allege or prove that the defendant kept as much as, or more than, ten gallons, with intent to sell the same in quantities less than that amount. It would not be a reasonable construction of the allegation of keeping for sale one pint of cider, to hold, as. argued, that the' defendant was “ going to procure more cider and make sales only in quantities of as much as ten gallons.” No distinction is perceived between keeping one pint of cider for sale, and keeping cider for sale in less quantities than ten gallons ; or between an illegal keeping for sale, and a keeping for illegal sale.

In reply to the jury’s written request, the court instructed them that the delivery of cider in a less quantity than ten gallons is 11 prima facie evidence of sale, and is a violation of law.” The indictment charges, not an illegal sale, but the illegal keeping for' sale; and evidence of sales was received for the purpose of showing the intent with which the cider was kept. The inquiry by the jury evidently related to the defendant’s colorable transactions, whereby he sold ten gallons of cider to a number of persons jointly, and allowed them to take it away in pails each holding less than ten gallons, the purchasers contributing to make up the price. Their inquiry was relevant to the case on trial so far as sales tended to show intent, and in any other view of the case was immaterial.

By the statute, delivery of cider in a less quantity than ten gallons “shall be deemed prima facie evidence of sale.” G. JL, c. 109, s. 16. In an indictment for selling, evidence of delivery unexplained would warrant a jury in finding the respondent guilty. The statute does not declare that the mere fact of delivery shall be deemed a sale, but prima facie, evidence of a sale. It was error, therefore, to charge that delivery is a violation of law. The criminal offence in this case would be, not the delivery, but the keeping with intent to sell in less quantities than ten gallons.

Verdict set aside.

Blodgett, J., did not sit: the others concurred.