As there may be a sale without an offer to sell (Williams v. Tappan,23 N.H. 385, 394), so there may be a keeping for sale without a sale or an offer to sell. Keeping spirituous liquor for sale is having possession and control of it with intent and readiness to make a sale or sales, — a combination of the means and purpose of being a vendor. It may be a long-continued practice or occupation: it may be instantaneous. It may be proved by evidence of a series of sales or other acts. Like the possession of counterfeit money with a fraudulent intent (Gen. Laws, c. 276, ss. 5, 9), it is a physical and mental condition that may cease when it has existed in violation of law but for a moment. The keeper of a single parcel of liquor, or of different parcels, may frequently discontinue and resume that state of things which constitutes the offence. It may occupy as brief a space of time as a sale; and, in its legal character, it does not differ from a
sale, or from the criminal possession of counterfeit money, in any particular that requires proof of the time alleged in the indictment. This conclusion accords with the practice and the understanding of the law that have prevailed in this state during the twenty-three years' operation of the present statute. It is, therefore, unnecessary to inquire into the soundness of the authorities cited by the defendant, which lay down the rule that time is of the essence of offences held to be continuous, or to consist of repeated acts or a course of life or conduct more or less prolonged. 1 Bishop Cr. Pr., ss. 248, 253; 2 id., ss. 956, 957.
The right of the defendant to plead a former conviction or acquittal, in bar of a second prosecution for the same offence, does not abolish the rule that he may be convicted of an offence committed at some other time than that named in the indictment. On a plea of former conviction or acquittal, he may prove the identity of the offence by parol. 1 Bishop Cr. Pr., ss. 296, 582; Queen v. Bird, 2 Den. C. C. 94, 199, 215.
In criminal cases the statute of limitations need not be pleaded, but may be set up as a defence upon the general issue or by demurrer. The time of the commission of the offence is so far material that the indictment must charge an offence not barred by the statute. State v. Robinson,29 N.H. 274; State v. Hunkins, 43 N.H. 557; State v. Caverly, 51 N.H. 446; State v. N. L. R. R., 58 N.H. 182. And the evidence must prove such an offence, not because the time must be proved as alleged, but because the defendant cannot be convicted of an offence barred by statute. If it has been supposed in any of our cases that a statute of limitations makes the averment of time so far material as to prevent a conviction of an offence committed on any other day than that alleged (State v. Robinson,29 N.H. 274, 278; State v. Rundlett, 33 N.H. 70, 71; State v. Prescott,33 N.H. 212, 214), we cannot adhere to such an error.
Whether or not the state's evidence should be restricted to a part of the time prescribed by the statute of limitations is a question of fact, to be determined at the trial term. 1 Bishop Cr. Pr., s. 286.
Judgment on the verdict.
BINGHAM, J., did not sit.