67 Mass. 466 | Mass. | 1854
The evidence of sales of fermented liquors, though objected to, was properly allowed to be given on the trial. The assumption of the defendant, that the accusation against him is limited, by the description of it in the indictment, to a charge of unlawful dealing in those liquors only which are spirituous, as well as intoxicating, is manifestly erroneous. Beside the general allegation that he was a common seller of spirituous and intoxicating liquors, it is specially averred that he sold fermented liquors, in quantities particularly mentioned,- on three different occasions, to as many different individuals. These last were material averments, because it is expressly declared by the statute that three such sales shall constitute a violation of that particular provision which prohibits all unauthorized persons from being common sellers of either spirituous or intoxicating liquors. St. 1852, c. 322, § 12. Proof therefore of the truth of these averments was-proof of the guilt of the defendant, and no competent evidence of the facts so averred could be rightly excluded,
It is now a general rule, perfectly well established, that in all legal proceedings, civil and criminal, bills of particulars or specifications of facts may and will be ordered by the court whenever it is satisfied that there is danger that otherwise a party may be deprived of his rights, or that justice cannot be done. Whether such an order shall be made is a question within the discretion of the court where the cause in which it is asked for is pending, to be judged of and determined upon the peculiar facts and circumstances attending it.
The evidence, therefore, of sales not mentioned in the list which was furnished to the defendant in the present case, was inadmissible, and should have been rejected. The particular purpose for which it was allowed to be adduced, scarcely, if at all,
As this evidence was material, and the defendant may have been injuriously affected by it, a new tidal must be granted.
Exceptions sustained.
In the case of Commonwealth v. Elwell, (ante, 463,) to the point (which was not decided in that case) that the defendant was entitled, of right, to a specification of the acts of sale relied on in support of the prosecution, were cited; Greenl. Ev. § 66; Rose. Crim. Ev. (2d ed.) 218, 275, 405, 425, 527; 1 Russ. on Crimes, (7th Amer. ed.) 184, 330; 6 Dane Ab. 737; Lambert v. The People, 9 Cow. 586; Commonwealth v. Pray, 13 Pick. 363; Commonwealth v. Davis, 11 Pick. 434; Commonwealth v. Snelling, 15 Pick. 321.