Commonwealth v. Tower

49 Mass. 527 | Mass. | 1844

Dewey, J.

1. It is no valid objection to this indictment, that it includes two persons. The acts therein charged, as constituting the offence, may well be done by two or more jointly; and wherever several may join in the offence, they may properly be united in the same indictment.

2. The objection that this indictment is bad because it avers the offence to have been committed “ on the 1st day of May last past, and on divers other days and times between that day and the day of taking this inquisition,” cannot avail. It is no objection that such continuous charge is made, and it accords with the forms usually adopted. Such was the case in Commonwealth v. Pray, 13 Pick. 359, and Commonwealth v. Odlin, 23 Pick 275; and it seems well adapted to the description of the offence.

3. It is then contended that the negative averment required to constitute a good indictment for the offence, viz. the allegation that the party was not duly licensed to make such sale, was not properly set forth in this indictment. The argument assumes that the allegation, “ without being first duly licensed therefor,”' must, by strict grammatical 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 we cannot sanction. The dwelling-house is introduced as the place where the liquor was used; and the averment, “ without being first duly licensed therefor,” clearly refers to the sale of the liquors, and not to the place where 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 negatives a joint license to the two, and that this would be true, although one of the defendants 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 constitute, as to that defendant, a good defence to this indictment. Further; we think that although it would have been more technically correct to have alleged that the defendants had not, nor either of them, any license to 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.