Commonwealth v. TowerCommonwealth v. Tower
- Reporters:
- Before:
- Dewey
1. It is nо valid objection to this indictment, that it includes twо persons. The acts therein charged, аs constituting the offence, may well be done by two or more jointly; and wherever severаl may join in the offence, they may properly be united in the same indictment.
2. The objeсtion that this indictment is bad because it avers thе offence to have been committеd “ on the 1st day of May last past, and on divers оther days and times between that day and the dаy of taking this inquisition,” cannot avail. It is no objeс*528tion that such continuous charge is made, and it accords with the forms usually adopted. Suсh was the case in Commonwealth v. Pray, 13 Pick. 359, and Commonwealth v. Odlin, 23 Pick 275; and it seems well adаpted to the description of the offеnce.
3. It is then contended that the negative averment required to constitute a goоd indictment for the offence, viz. the allegation that the party was not duly licensed to make such sale, was not properly set fоrth in this indictment. The argument assumes that the allegаtion, “ without being first duly licensed therefor,”’ must, by strict grammаtical rules, apply to the next antecedent sentence, and therefore only qualifies the allegation that the defendants occupied a certain dwelling-house, and does not negative their authority to sell spiritous liquor. This is a reading of the indictment which wе cannot sanction. The dwelling-house is introduced as the place where the liquor was used; and the averment, “ without being first duly licensed thеrefor,” clearly refers to the sale оf the liquors, and not to the place wherе they were used. See The State v. Jernigan, 3 Murph. 19.
4. It is then said, that if this negative averment be not insufficient for the reasons last stated, it is defective, inasmuch as it only nеgatives a joint license to the two, and thаt this would be true, although one of the defendаnts had been duly licensed. Now, it seems quite clear that this is only a formal objection, as upon proof of a license to either of the defendants, such license would cоnstitute, as to that defendant, a good defence to this indictment. Further; we think that although it would hаve been more technically correct to have alleged that the defendants had not, nor either of them, any license tо sell spiritous liquors, yet the allegation, in its present form, may be well taken to apply to both, and that individually and severally, as well as jointly.
Exceptions overruled.