Commonwealth v. Buck

Dewey, J.

It is contended that no offence is set forth in this indictment, and that the ruling of the court was wrong as to the competency of the evidence to sustain the counts.

1. Upon the first point, the error of the defendant is, in supposing that a technical contract between a vendor and vendee is required to be set out. In a civil action upon such contract, it would be required that a legal consideration be set forth in the declaration. But it is otherwise in an allegation of a sale charged as a criminal offence under the Rev. tits. c. 47. It is sufficient, in the latter case, to allege an actual sale, and to show the terms and nature of the contract upon the trial.

2. The remaining question is as to the sufficiency of the evidence to support the various counts. The indictment alleges a sale of a specific quantity of liquor. Is that allegation sustained by proof of a sale of a quantity not corresponding precisely with the quantity charged, but less than twenty eight gallons ? The argument of the defendant’s counsel was placed principally upon the ground, that every party charged with an offence, and presented by the grand jury, has a right to insist that his offence be plainly and fully set forth, that he may well know the precise offence charged upon him, and thus be enabled to prepare for his trial; and also for the further reason, that he may thus be enabled to rely upon the judgment in the case, as a bar to any future prosecution for the same act.

A long and well established course of practice, sanctioned by judicial decisions, and authorized, to some extent, by express legislative enactments, fully authorizes the conviction of a party upon proof of a part of the offence charged in the indictment, if any crime shall appear to be substantially charged in that part of the indictment of which the party is convicted, .although he may be acquitted of a part of the offence set forth in the indictment. It is no variance, which is the foundation of any legal objection, that the evidence fails to prove the entire charge. In cases of larceny, convictions are frequent where the jury find the larceny proved only as to a part of the articles enumerated. Many other cases might be referred to, illustrating the same principle.

If the sale proved was of a greater quantity than that stated in the indictment, but within the statute provision, the case is still stronger, as the greater quantity would include the less; and the sale of the whole, being but one act, a conviction upon an indictment, describing the quantity sold as less than that which was actually sold, would nevertheless be a bar to any future prosecution for the entire act.

Exceptions overruled