Commonwealth v. Chadwick

Field, J.

The defendant’s license was subject to the conditions, that “ no sale of spirituous or intoxicating liquor shall be made between the hours of eleven at night and six in the morning ; nor during the Lord’s day, except,” &c.; and that he “ shall not keep a public bar.” Pub. Sts. c. 100, § 9, cl. 2, 5. St. 1885, e. 90, § 1.

The government’s witness testified that the sale he testified to in the lower court was the same sale he testified to in the Superior Court; but the defendant’s evidence tended to show that no sale was made after eleven o’clock. Whether the sale was made before or after eleven o’clock at night, it was the same sale which was put in evidence in both courts, and it was equally an offence, whether, in making this sale, the defendant violated one or two of the conditions of his license. The defendant was charged with selling, on July 5, 1886, intoxicating liquor, “ without any authority therefor.” The form of the complaint was sufficient, because, if the defendant sold the liquor oyer a public bar, or after eleven o’clock at night, his license did not give him any authority to make such a sale. Commonwealth v. Davis, 121 Mass. 352. Commonwealth v. Rogers, 135 Mass. 536. Commonwealth v. Salmon, 136 Mass. 431. Commonwealth v. Everson, 140 Mass. 292.

The presiding justice, was not required to rule upon the government’s evidence, if the defendant intended to introduce other evidence; and no exception lies to the refusal to rule that the evidence of the government was insufficient, if other evidence was afterward offered by the defendant. But the court also ruled that there was evidence introduced by the government upon which the jury could find the defendant guilty. The admission by the defendant that he was the proprietor of the place, and had a license of the first class “ to do business thereat,” and the testimony that the defendant kept the place, were evidence for the jury that sales made in it were made by him or by his authority. Commonwealth v. Mead, 140 Mass. 300. Commonwealth v. Leighton, 140 Mass. 305.

Exceptions overruled.