The opinion of the Court was drawn up by
Goodenow, J.This is an indictment against the defendant as a common seller of intoxicating'liquors, found October term, 1858, charging that he, “ at Avon, in said county of Franklin, on the first day of July in the year of our Lord one thousand eight hundred and fifty-eight, and on divers other *450days and times, between said first day of July aforesaid, and the day of finding this indictment, without any lawful authority, license or permission, was a common seller of intoxicating liquors, against the peace,” &e.
To this indictment there was a demurrer ,and joinder, and judgment overruling the demurrer. To this judgment exceptions were duly taken.
The demurrer admits the facts duly alleged in the indictment. The defendant was then, on the first day of July, 1858, a common seller of intoxicating liquors contrary to the statute of 1856, which was in force and still is, for the purpose of punishing his offence and offences of others in like kind offending. “ Divers other days,” &c., may be rejected as surplusage, or the Attorney for the State may enter a nol. pros, as to offences which were committed after the law of 1858 took effect, to wit, on the 15th of July, 1858. Commonwealth v. Stedman, 12 Met., 444.
The defendant is not injured by this course. If the facts would have furnished him with a defence, he could have gone to the jury. He could have required the government to elect whether to proceed against him under the statute of 1856, or the statute of 1858. If they had elected to proceed under the statute of 1856, we are not able to see why they should not have prevailed. If they had elected to proceed under the statute of 1858, they might have encountered insurmountable obstacles. Commonwealth v. Pray, 13 Pick., 359.
Exceptions overruled.
Tenney, 0. J., and Rice, Appleton, Davis, and Kent, JJ., concurred.