| Mass. | Nov 15, 1870
The “ facts and circumstances ” set forth in the complaint, as the ground for belief that intoxicating liquors were kept for sale in the house to be searched, were sufficient to justify the magistrate in issuing the warrant. We therefore see no cause for quashing the proceedings on that ground; and no other was relied upon in the argument. See Commonwealth v. Intoxicating Liquors, ante, 181; Commonwealth v. Leddy, ante, 381, 383.
There is however another difficulty in the case, which renders it necessary to set aside the verdict. The intent to sell contrary to law, in which the whole criminality of the keeping consists, must be proved beyond reasonable doubt, according to the ordinary rule of criminal cases, before a decree of forfeiture can be had. The most that can be said of the evidence reported in the bill of exceptions is, that it is consistent with such an intent. It is however equally consistent with an intent to which the law attaches no criminality. The possession and use of intoxicating liquors are not prohibited by any statute. The description of the rooms, and of the articles found in them, shows very plainly that such liquors had been and still were kept and used there; but any inference, from the evidence reported, of an intent to sell, appears to be wholly conjectural. There may or may not have been such an intent, but the facts reported are too scanty and indecisive to furnish any of the elements of certainty beyond reasonable doubt. Under the circumstances, the instructions requested by the claimants’ counsel were appropriate to the case, and those that were actually given may have had the effect, in the minds of the jury, of giving undue importance to possession and use as proof of the intent to sell. Exceptions sustained.