Commonwealth v. Kennedy

Gray, J.

That the evidence introduced at the trial was sufficient to prove that the defendant kept or maintained a tenement used for the sale and keeping of intoxicating liquors is too plain to be discussed. Commonwealth v. Taylor, 14 Gray, 26.

It is argued that the liquors which were kept and sold on the premises may have been ale, porter, strong beer or lager beer; and that the burden of proving that such liquors could not be lawfully sold in Attleborough was upon the Commonwealth.

By the St. of 1869, e. 415, as amended by the Sts. of 1870, co. 389, 390, sales of ale, porter, strong beer or lager beer may be made in any city or town which does not vote that they shall not be allowed; but are unlawful and punishable as sales of intoxicating liquors in any city or town which does so vote. Commonwealth v. Bennett, ante, 27.

The St. of 1864, e. 121, § 1, declares that “ in all criminal prosecutions in which the defendant relies for his justification upon any license, appointment or authority, he shall prove the same; and until such proof the presumption shall be that he is not authorized.” The rule of evidence established by this statute is not limited to cases of a written license, appointment or certificate of authority ; but extends to all cases in which the law either expressly permits, or by restricting a general prohibition, which would otherwise include the case, allows the act to be done under certain circumstances. The words “ license, appointment or authority,” in this statute, as in indictments for offences of this class, comprehend cases in which the statutes declare that persons of a certain occupation, such as druggists or officers of the law, may sell, or that the prohibition of the statute shall not apply to imported liquors in the original packages, or to cider sold for other purpose than as a beverage, or to the fruit of the vine for the commemoration of the Lord’s Supper, or to native wines not to be drunk on the premises. Commonwealth v. Carpenter, 100 Mass. 204. Commonwealth v. Lafontaine, 3 Gray, 479. Commonwealth v. Clapp, 5 Gray, 97. Commonwealth v. Conant, 6 Gray, 482. Commonwealth v. Purtle, 11 Gray, 78. Commonwealth v. Chisholm, 103 Mass. 213. Commonwealth v. Lynn, 107 Mass. 214.

That rule governs this case. As sales of ale, porter, strong beer and lager beer in Attleborough were punishable as unlawful sales of intoxicating liquors, if the town had voted that they should not be allowed, and were authorized if not so prohibited, the burden of proving that they were authorized was upon the defendant. .

Exceptions overruled.