The defendant was convicted under the Gen. Sts. a. 87, §§ 6, 7, upon a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors.
When he was brought before the court for sentence, it appeared that he had been previously convicted, under the St. of 1875, e. 99, of illegally keeping intoxicating liquor for sale; and that he had not previously been convicted of any other of-fence claimed to he similar to the one charged in this complaint. *454Whereupon the presiding justice ruled, as matter of law, that the court had nó discretion, in the matter of sentence, to impose a fine without imprisonment, or imprisonment without a fine, but was compelled, under the St. of 1866, c. 280, to impose a sentence of both fine and imprisonment.
We are of opinion that this ruling proceeded upon an erroneous construction of the St. of 1866.
This statute provides, in § 1, that “ when it is provided by law that an offender shall be punished by a fine and imprisonment in the jail, or by a fine and imprisonment in the house of correction, such offender may, at the discretion of the court, be sentenced to be punished by such imprisonment without the fine, or by such fine without the imprisonment, in all cases where the offender shall prove or show to the satisfaction of the court that he has not before been convicted of a similar of-fence.”
The offence of keeping a tenement used for the illegal sale or keeping of intoxicating liquor, which makes it a nuisance, is a distinct and different offence from that of unlawfully keeping for sale intoxicating liquor. A conviction or acquittal of either is no bar to an indictment for the other, even upon the same evidence. If they were not different offences, the St. of 1875, c. 99, would operate as a repeal of the Gen. Sts. e. 87, §§ 6, 7, so far as they relate to the illegal sale or keeping of intoxicating liquor. Commonwealth v. Carpenter, 100 Mass. 204, and cases cited. The gist of one offence is the keeping and using a tenement for an illegal purpose, which make it a nuisance; of the other, doing certain acts which constitute an offence, but which do not necessarily involve the keeping of any tenement or building.
The word “ similar ” is often used to denote a partial resemblance only. But it is also often used to denote sameness in all essential particulars. We think the Legislature intended to use it in the latter sense in the statute we are considering. There are many instances in our statutes where a severer punishment is prescribed if the offender has been previously convicted of an offence, but they are all cases in which the previous conviction was of an offence which is the same, or identical in kind, with the offence for which he is to be punished. It is sometimes called the same offence; Gen. Sts. e. 165, § 35; and some*455times “the like offence.” Gen. Sts. c. 161, § 47c: 162, § 7; c. 167, § 4. But we know of no case in which the Legislature has prescribed a severer punishment upon an offender because he has been previously convicted of a different offence.
The provisions of the act which we are considering are general in their application to all offenders; and we are of opinion that they were enacted in pursuance of the general policy to impose a severer punishment upon offenders who have been before convicted of an offence identical in kind, and that the use of the words “similar offence,” instead of “the same” or “the like offence,” was not intended to change that general policy.
It is contended that this question is not properly before us on exceptions. But the presiding justice in the Superior Court" ruled, as matter of law, that he had no discretion as to sentence. By this ruling the defendant was prevented from appealing to the discretion of the court to mitigate his sentence. He was therefore aggrieved by the ruling and judgment of the court, and, by the express provisions of the Gen. Sts. c. 115, § 7, was entitled to allege exceptions thereto, and to have such exceptions determined by this court. Exceptions sustained.