The court properly refused to adopt the instruction asked' by the defendant, that it was necessary for the government to satisfy the jury both of an illegal keeping of intoxicating liquors and of illegal sales. If the tenement was kept and used for either purpose, it was sufficient. The St. 1855, c. 405, and Gen. Sts. c. 87, § 6, both make either act punishable It is true that the indictment charges both the acts, as it necessarily must if it would rely upon them as substantive charges. But proof of the commission of either act is sufficient to maintain the indictment. Commonwealth v. Kimball, 7 Gray, 328, is directly to this point.
*3The only ground for any exception to the ruling of the court is the ruling “ that a conviction would be warranted by proof that the defendant kept the place for the purpose of making illegal sales of intoxicating liquors.” The statement of the case is very meagre, but dealing with the instruction as an abstract proposition, it is not correct. The indictment charged the defendant with keeping and maintaining a certain tenement, by him used “ for the illegal sale and illegal keeping for sale of intoxicating liquors.” But “ the keeping the place for the purpose of making illegal sales of intoxicating liquors” does not sustain the charge of keeping a tenement used by him for “ the illegal keeping for sale of intoxicating liquors.” Under this indictment, the evidence must be sufficient to establish the illegal keeping for sale of such liquors, and not a mere place for the purpose of making sales.
Had the case been put to the jury upon the first instructions stated in the bill of exceptions, without the succeeding portions of the same, it would seem to have been properly before the jury; but as the instruction which is the subject of these exceptions was the last given to the jury, and was stated as authorizing a conviction, we must consider it as material, and for this cause the verdict must be set aside.
The motion in arrest of judgment, upon the ground that the indictment contains no sufficient description of the place in which the tenement was situated, cannot prevail. The present form of description has been repeatedly held good.
Nor is there any objection to the manner of alleging the time of the commission of the offence.
Nor that the offence is charged in the indictment as committed within a period of time, a part of Which extends to the first day of April last, which was prior to the enactment of the Gen. Sts. c. 87, under which this offence is now punishable, the St. 1855, c. 405, having been repealed. All objections that would ordinarily arise from a repeal of the act under which the offenci occurred are entirely obviated, in the present case, by the carefully guarded enactments of the Gen. Sts. as to the repeal of former statutes. Both the St. 1855, c. 405, and the Gen. Sts. *4are alike in prohibition, and generally, as to the offence; and Gen. Sts. c. 181, §§ 6-9, save the objection of the repeal of St. 1855, c. 405.* Exceptions sustained.
At the same term, in Commonwealth vs. Kelley, under a similar indictment for the same offence, a like decision was made, upon a motion in arrest of judgment, for the same reasons.