254 Mass. 560 | Mass. | 1926
The defendant was convicted on three complaints charging him, respectively, with keeping intoxicating liquor with intent to sell; with making a sale of intoxicating liquors, to wit: ten half barrels of beer to Frank Golden on March 6, 1924; and with selling intoxicating liquors, to wit: five half barrels of beer to Peter Golden on May 2, 1924. The defendant’s plea to one of the complaints"— that he had been acquitted of the same offence— was overruled properly. At the trial of the earlier complaint the court, upon motion of the defendant, directed the jury to return a verdict of not guilty by reason of a variance. Commonwealth v. Farrell, 105 Mass. 189.
If a defendant consents to the discharge of the jury during trial he cannot thereafter contend that he has been in jeopardy. Commonwealth v. Sholes, 13 Allen, 554. Commonwealth v. Hart, 149 Mass. 7. A verdict of not guilty by reason of a variance is not a verdict on the merits, G. L. c. 263, § 7, and is not a bar to a subsequent prosecution on the same evidence. G. L. c. 263, § 8. The record of the court that the acquittal was by reason of a variance cannot be contradicted. Kelley v. Dresser, 11 Allen, 31. Wells v. Stevens, 2 Gray, 115. "... testimony that the evidence in support of . . . [the indictment] was the same as that in support of a former indictment, on which the defendant was acquitted, is inadmissible, if the record shows that the acquittal was on the ground of a variance.” Commonwealth v. Chesley, 107 Mass. 223.
There was no error in the order of the court requiring the three complaints to be tried together. Commonwealth v. Rosenthal, 211 Mass. 50. Commonwealth v. Slavski, 245 Mass. 405, 412, 413.
The testimony of Peter Golden that he drank some of the beer bought of the defendant by Frank Golden and became intoxicated by it properly was admitted, not to prove the exact alcoholic content, but to be weighed with the other evidence in the case. The intoxicating effect of liquor may be so great that a jury could infer that it contained more than two and three quarters per cent of alcohol. There was evidence that the defendant said, when he sold this beer, that it had a percentage of five, and the jury could have found that he meant five per cent of alcohol.
The requests for rulings were properly denied, and the rights of the defendant were sufficiently guarded in the charge. No error is disclosed in the refusal of the trial judge to grant the defendant’s motion for a new trial.
All exceptions argued have been considered and no reversible error is discovered.
Exceptions overruled.