Commonwealth v. Byrnes
126 Mass. 248
Mass.
1879
Check Treatment
Gray, C. J.

Upon objections to a complaint, specifically assigned by demurrer or motion to quash, filed before judgment in the District Court, and renewed in the Superior Court upon appeal, the decision of the Superior Court is subject to revision by this com’t on bill of exceptions. St. 1864, o. 250, § 2. Commonwealth v. McGrovern, 10 Allen, 193. Commonwealth v. Walton, 11 Allen, 238. The Gen. Sts. c. 173, § 8, authorize any question of law arising “ upon the trial of a person convicted in the Superior Court,” which in the opinion of the presiding judge is so important or so doubtful as to require the decision of this court, to be reserved, at the desire or with the consent of the defendant, upon report; and apply as well to questions arising upon the trial of an issue of law, as to questions of law arising upon the trial of an issue of fact. Commormealth v. Boston & Albany Railroad, 121 Mass. 36. The objections to the sufficiency of the allegations in this complaint are therefore properly before us.

By the St. of 1875, o. 99, § 1, upon which this complaint is founded, it is enacted that “no person shall sell, or expose or keep for sale, spirituous or intoxicating liquors, except as author ized in this act.” It is unnecessary to negative in the complaint the specific exceptions afterwards enumerated in the proviso to this section and in the subsequent sections of the statute. But the exception in the enacting clause of the first section, already quoted, should be negatived, by the words “ not having then and there any license, appointment or authority according to law,” or by other equivalent words; and the want of any such negative allegation renders this complaint fatally defective. The insertion of the word “unlawfully” does not dispense with the necessity of specifically alleging the elements required by the enacting clause of the statute and by the rules of criminal pleading to constitute the crime charged against the defendant. Commonwealth v. Hart, 11 Cush. 130, 136. Commonwealth v. Wilson, 11 Cush. 412. Commonwealth v. Tuttle, 12 Cush. 502. Commonwealth v. Jennings, 121 Mass. 47. Commonwealth v. Davis, 121 Mass. 352.

Complaint quashed.