95 Mass. 581 | Mass. | 1866
1. The complaint alleges that the defendant, from August 17th to October 17th 1865 kept a tenement in Boston by him used for the illegal sale and illegal keeping for sale of intoxicating liquors, to the great injury and common nuisance of the citizens of the Commonwealth, and contrary to the statute. The complaint was made October 18th 1865, when the Gen. Sts. c. 87, §§ 6, 7, and St. 1865, c. 269, were in force. Judgment was not rendered till July 25th 1866. In the mean time, St. 1866, c. 280, had been passed, increasing the penalty for this offence, and repealing the former statutes so far as they were inconsistent with it. It has been held in the case of Flaherty v. Thomas, 12 Allen. 428, that the latter statute operated as a repeal of the former statutes above named, prescribing a punishment for keeping or maintaining the kind of nuisance? mentioned in Gen. Sts. c. 87, § 6. But though St. 1866, c 280
2. It is contended on the part of the Commonwealth, that fnough the act of 1865, c. 269, and Gen. Sts. c. 87, § 7, are repealed by the act of 1866, yet § 6 of Gen. Sts. c. 87, is not repealed. This section declares the offence, but does not prescribe the penalty. It is said, therefore, that the offence may be punished according to the provision of Gen. Sts. c. 174, § 1. This section provides that in case of legal conviction, where no punishment is provided by statute, the court shall award such sentence as is conformable to the common usage and practice in this state, according to the nature of the offence, and not repugnant to the constitution. But when this offence was committed and this complaint was made, the punishment was provided by statute, and therefore the Gen. Sts. c. .174, did not Ripply to it. The penalty was repealed by the statute of 1866,
3. It is further contended that the offence set forth in the complaint was a nuisance at common law, and may be punished as such, if it is held that the statute penalty is repealed. No authority is cited in favor of this position, and those which we have examined are opposed to it. In 1 Bish. Grim. L. § 1047, it is said that, aside from statutory provisions, a crime is not committed by selling intoxicating liquors. Merchants have always dealt in wines and other liquors in large quantities, without being subject to prosecution at common law. Innkeeping was a lawful trade, open to every subject without license at common law. If he sold corrupt wines or victuals, an action lay against him. He might recover the price of wines sold by him by action of debt. Bac Ab. Inns. 8 Co. 147. So it was lawful to Keep an alehouse. 1 Russell on Crimes, 323, and note.
In the argument for the Commonwealth, such places as the defendant is charged with keeping are classed with brothels and gaming-houses, and it is argued that they are all equally nuisances. But it was not so at common law. Brothels and gaming-houses were held to be nuisances under all circumstances ; but alehouses were not, unless they became disorderly and in such cases they were held to be nuisances on account of the disorderly conduct in them, whether the keeper were licensed