Commonwealth v. Certain Intoxicating Liquors

| Mass. | Mar 15, 1871

Ames, J.

The complaint charges that the liquors in question are kept by John Cahill in a certain building, (which is accurately described,) and the first floor of the said building, occupied by him as a place of common resort; and the warrant limits the search to that part of the building. We see no ground for the suggestion that there is a variance between the charge and the proof, or between the complaint and the warrant. The charge is, that the liquors are kept, not in the building indiscriminately, but in that part of it, viz.: the first floor, which was occupied by Cahill. The jury were instructed that if they were satisfied upon the evidence that the premises were a shop for the sale of .intoxicating liquors, open to the public, to which the public had free ingress for the purpose of purchasing such liquors, they would be warranted in finding that it was a place of common resort. As it was in evidence not only that it was open to the public, but that parties went there without restriction, and that intoxicating liquors were sold there, there was no error in such an instruction.

By the St. of 1869, c. 151, the Commonwealth has a limited right peremptorily to challenge jurors in all criminal causes. The present complaint, although primarily a process in rem, to procure the condemnation and forfeiture of liquors illegally kept for sale, involves a criminal charge specifically set forth, of which the forfeiture is the punishment. Commonwealth v. Intoxicating Liquors, 13 Allen, 561. It is therefore a criminal cause within the meaning of the statute, and the challenge of the juror by the Commonwealth was properly allowed.

Exceptions overruled.