Commonwealth v. Baldwin
213 Mass. 238
Mass.
1913
Check Treatment
Hammond, J.

The demurrer to the plea in bar was rightly sustained. Both complaints were made and sworn to by the same *239person at the same time. In each the crime charged was the keeping and maintaining of a common nuisance between March 7, 1911, and August 7, 1911. One complaint alleged that the tenement was used for the sale of intoxicating liquor; the other that it was resorted to for prostitution and lewdness. Both complaints were tried together in the lower court “at one trial.” That court found the defendant not guilty on the first and guilty on the second.

The only sensible view of the course taken by the lower court is that the Commonwealth proved that the tenement was resorted to for prostitution and lewdness and was therefore a nuisance, but failed to show that it was used for the sale of intoxicating liquor, and that the acquittal was based upon a variance between the charge and the proof.

It is well settled that where there are two or more counts, even for the same offense, in one complaint or indictment, an acquittal on one count by reason of a variance is perfectly consistent with conviction upon another stating the offense in a different way. Commonwealth v. Edds, 14 Gray, 406. Under the peculiar circumstances of this case the same rule should be applied here; and the failure to prove the specific allegation in one complaint and the consequent acquittal by reason of a variance between the charge and the proof is no bar to conviction upon the other.

Exceptions overruled; order sustaining the demurrer affirmed.