After it was decided, in Commonwealth v. Thurlow, 24 Pick. 374, that by the common law rules of evidence it was incumbent on the Commonwealth, in the trial of an indictment for selling spirituous liquor without license, to produce evidence that the defendant had no license, the legislature enacted, by St. 1844, c. 102, that “ in all prosecutions for selling spirituous or fermented liquors without license,” the legal presumption should be that the defendant had not been licensed *293and that, if he should rely on a license in his defence, it should be incumbent on him to prove that fact. And that statute was held to apply to prosecutions for the sale of intoxicating liquors, under St. 1850, c. 232. Commonwealth v. Kelly, 10 Cush. 69. But it was held not to apply to prosecutions under St. 1855, c. 405, which declared all buildings, places or tenements used for the illegal sale or keeping of intoxicating liquors to be common nuisances. Commonwealth v. Lahy, 8 Gray, 459. In that case it was said by Chief Justice Shaw, that as the St. of 1844, c. 102, was expressly limited to prosecutions for selling liquors, the court saw no reason for departing from the general rule of evidence, and applying the exception which was made in that statute to a distinct class of offences. Subsequently to that decision, the St. of 1859, c. 160 — which is reenacted by the Gen. Sts. c. 172, § 10 — was passed in these terms : “ In all criminal prosecutions, in which the defendant shall rely for his justification upon any written license, appointment or certificate of authority, he shall prove the same, and until such proof the presumption shall be that he is not so authorized.” And St. 1844, c. 102, is repealed. Gen. Sts. p. 886. By the repeal of that statute, the common law rule of evidence — by which the burden is on the Commonwealth, in prosecutions for acts alleged to be done without license or authority, to prove the negative allegation — was left applicable to all cases except those of written licenses or authority, in which alone the burden is put by the Gen. Sts. c. 172, § 10, upon the defendant to make proof of such license or authority.
As, by the Gen. Sts. c. 86, §§ 25-27, no written license or certificate of authority is required to justify importers in selling liquor in the original casks or packages in which it was imported, or druggists in selling alcohol, or any person in selling cider for other purposes than that of a beverage, or in selling wine for sacramental purposes, it follows from the foregoing statement of the common and statute law, that in the case at bar it was incumbent on the Commonwealth to produce evidence that the sales of liquors, with which the defendant is charged in the complaint, were not such as he was authorized *294to make without any written license or certificate of authority The complaint alleges that he was “ a common seller of intoxicating liquors,” (without mentioning the kind or kinds of liquor,) “ not being authorized to sell the same.” And the exceptions do not show what the evidence was on which the verdict was found. If that evidence had been set forth, it might have shown that the defendant had no license or authority, and tho the burden of proof imposed on the Commonwealth had been sustained. For instance; that burden would have been sustained if the evidence had shown that the defendant sold intoxicating liquor by the glass, three or more times, on a training field, or in a common bar-room. This alone would have sufficiently negatived all authority; for no person can by law have authority, written or unwritten, so to sell liquor. And probably in a majority of prosecutions for the sale of liquors, the evidence produced by the Commonwealth, in proof of the sales, effectually negatives the defendant’s authority to sell.
The court, at the trial, refused to instruct the jury that the government must prove that the defendant had no license, appointment or authority to sell, in order to convict him, and instructed them that it was the duty of the defendant, if he sold under any authority, to prove such authority. This was wrong. And as it does not appear in the bill of exceptions, and we cannot know, that the evidence produced by the Commonwealth did show that the defendant had no license or authority, the exceptions must be sustained. If it had appeared that the evidence showed that the defendant had no authority to sell liquor, the exceptions must have been overruled; because it would thereby have appeared that the conviction was right, and that the wrong instruction caused no injury to the defendant.
New trial granted.*
Several other similar decisions were made, for the same reasons, in cases coming up in different counties, in the fall circuit.