100 Mass. 204 | Mass. | 1868
1. This indictment is founded on the Gen. Sts. c. 87, §§ 6, 7, by which it is enacted that all buildings, places or tenements “ used for the illegal keeping or sale of intoxicating liquors,” or resorted to for certain other illegal purposes, shall be deemed common nuisances, and that whoever keeps or maintains such a common nuisance shall be punished. These sections do not undertake to define what sale or keeping of intoxicating liquors shall be illegal, but leave that to be ascertained from other statutes from time to time. The offence of keeping a place for such an illegal purpose, which makes it a common nuisance, is a distinct offence from that of unlawfully selling intoxicating liquors; an acquittal or conviction of either is no bar to an indictment for the other, even upon the same evidence; and the change or repeal of the statute which prohibits the one does not repeal the statute which prohibits the other. Commonwealth v. Roland, 12 Gray, 132. Commonwealth v. Bubser, 14 Gray, 83. Commonwealth v. Cutler, 9 Allen, 486. Commonwealth v. O’Donnell, 8 Allen, 549. The Sts. of 1868, cc. 141, 311, did not therefore repeal the statute on which this indictment is framed, or exempt the defendant from punishment for its violation.
2. The presiding judge rightly refused to rule that the Commonwealth had the burden of proving that the defendant was not such a person as under the St. of 1868, c. 141, § 1, might
Exceptions overruled.
Hoar, J., did not sit at the argument of this and the six following cases.
Similar decisions were rendered in the cases of Commonwealth v Lawler, at September term 1869 for Hampden, and Commonwealth ▼ Cotter, at October term 1869 for Worcester.