Commonwealth v. Perley

Wilde, J.

This was an indictment against the defendant for selling spiritous liquors without license, contrary to the Rev. Sts. c. 47; and the question raised by the exception depends on the construction to be given to the first section of that chapter. By that section it is enacted, that “No person shall presume to be an innholder, common victualler, or seller of wine, brandy, rum, or any other spiritous liquor, to be used in or about his house or other buildings, unless he is first licensed as an innholder or common victualler, according to the provisions of that chapter!”

The question is, whether a party can be considered as a common seller of spiritous liquors, within the meaning of the statute, by any number of sales, under any circumstances, the sales all having been made on one day. If a party may be so considered, there can be no doubt that the jury were rightly instructed in the present case. It appeared in evidence, that, at the anniversary of the Agricultural Society, held at Lynn, the defendant kept open house, and sold spiritous liquors,' during that day and evening, to a large number of persons, to be drunk in his house; that he had two bars in different parts of his house, one a permanent one and one temporary, each tended by two persons, during a great portion of the day and evening; and that these bars contained the apparatus usually found in bars where ardent spirits are sold.

On this evidence, the jury were instructed, that if fully believed, it was sufficient to show that the defendant was a common seller, as charged in the indictment, without further proof of sales of spiritous liquors by the defendant, before or after the day named.

This instruction to the jury appears to the court to be correct, and conformable to the true meaning of the first section. That section was intended to provide for cases of numerous sales, which, to charge particularly in an indictment, would tend to great prolixity; and whether such numerous sales were made on one day, or on different days, does not seem to be material. The statute does not require in terms that such sales must be made on divers days, and there seems to be no good reason for holding that they should be.

In Comm’th v. Odlin, 23 Pick. 275, it was held, that the making of three sales to one person was equivalent to three sales to as many different persons, in order to convict the defendant of being a common seller of spiritous liquors, under the same first section of the statute. The number of sales, in that case, was regarded, and not the person or persons to whom the sales were made ; and, for the same reason, the number of sales is to be considered in the present case, and it is not material whether they were made on one day or on divers days.

Exceptions overruled.