Commonwealth v. Kern, 147 Mass. 595

147 Mass. 595 | Mass. | 1888

Morton, C. J.

When an offence is local in its nature, the allegation of place is a necessary part of the description of the offence, and it must be proved as laid. Thus it has been held that the offence of maintaining a tenement used for the illegal sale or keeping of intoxicating liquors is a local offence, like the offence of larceny in a building, or burglary, or arson, and the allegation of place is material. The locality of the tenement or building fixes the identity of the offence charged. Commonwealth v. Heffron, 102 Mass. 148. Commonwealth v. Bacon, 108 Mass. 26. But where an offence has no essential connection with the place in which it is committed, like the offence of simple larceny or assault, the place is not material, and need not be proved as alleged; it is sufficient to show that the offence was committed at any place in the county. Commonwealth v. Tolliver, 8 Gray, 386. Commonwealth v. Creed, 8 Gray, 387. Commonwealth v. Lavery, 101 Mass. 207.

The offence of keeping intoxicating liquors with intent to sell-the same unlawfully is different in its character from the offence of maintaining a tenement used for the illegal keeping or sale of intoxicating liquors. This offence does not involve any fixed ox-certain place as a part of its idexxtity. Liquors may be kept for illegal sale in a movable vehicle or upoxx the person. It is xxot local in its nature, and the allegation of place is not material. It is sufficient if the proof shows that the illegal keepiixg was withiix the county.

The defendant contends, that, as under our laws a man may be licensed to sell intoxicating liquors in one town while he cannot in another, the allegation of place has become material. The fact that a man has a license is a matter which affects the defence or evidence, but does not change the essential character of the offence, or the mode of stating it in the indictmeixt. Though the evidence may be different in different places, the offeixee is the same in all, that of keeping intoxicating liquors with intent to sell the same unlawfully ; and whether there is a license or not, the allegation of place does not become a matter of local description of the offence.

Exceptions overruled.