Commonwealth v. Lee

| Mass. | Nov 27, 1888

Field, J.

A building wholly occupied by the defendant, and used by him in whole or in part for the illegal keeping or sale of intoxicating liquor, may be described in a complaint under the Pub. Sts. c. 101, §§ 6, 7, as a building, or as a building and tenement, or as a tenement, kept and maintained for these illegal purposes; but a tenement is not necessarily an entire building; it may be a part of a building; and proof that the defendant occupied a part of the building and used it for these illegal purposes, while other persons occupied other parts of the same building, will not support a charge of keeping and maintaining a building, or a building and tenement. Commonwealth v. McCaughey, 9 Gray, 296. Commonwealth v. Godley, 11 Gray, 454. Commonwealth v. Logan, 12 Gray, 136. Commonwealth v. Shattuck, 14 Gray, 23. Commonwealth v. Bossidy, 112 Mass. 277" court="Mass." date_filed="1873-09-15" href="https://app.midpage.ai/document/commonwealth-v-bossidy-6417273?utm_source=webapp" opinion_id="6417273">112 Mass. 277, 278. Commonwealth v. Hersey, 144 Mass. 297" court="Mass." date_filed="1887-03-23" href="https://app.midpage.ai/document/commonwealth-v-hersey-6422421?utm_source=webapp" opinion_id="6422421">144 Mass. 297.

The argument is, that the descriptions of “ a building,” and of “a tenement in building,” etc., in the complaint, are inconsistent ; because it is said that one means the whole building, and the other a part of the building, and proof of maintaining the latter would not support a charge of maintaining the former.

On the authority of Commonwealth v. Hill, 14 Gray, 24, we think that this complaint must be considered as charging the defendant with keeping and maintaining a tenement in the building described. The effect of the two videlicets is to render the charge more specific, and as the latter specification is contained in the former, there is not such inconsistency in the complaint as makes it necessary to quash it, but the Commonwealth must be confined to the proof of the offence as defined by the last specification. It was a question for the jury whether the evidence proved that the tenement kept and maintained by the defendant was but a part of the building described in the complaint. Whether a building which contained but one room could be described as a building, to wit, a tenement in a building, or whether a charge of maintaining a tenement in a building could be supported by evidence of maintaining an entire building containing more than one tenement, are questions which seem not to have been decided.

Exceptions overruled.