84 Me. 555 | Me. | 1892
The defendant was convicted on an indictment for keeping a liquor nuisance in a building comprising a portion of his dwelling-house. His motion in arrest of judgment having been overruled at nisi prius, he urges his objection against the indictment and challenges the correctness of one instruction to the jury.
1. Revised Statutes, c. 17, § § 1 and 2, do not " cover eleven distinct offenses,” as contended, but a single offense, viz: a statutory nuisance which may be proved by a commission of any one of the various acts therein specified. State v. Lang, 63 Maine, 215, 218 ;Com. v. Foss, 7 Gray, 330.
2. The indictment need not allege in terms that the illegal practices mentioned were carried on with the knowledge or consent of the defendant. After setting out the different acts and conditions which, by the statute, constitute a common nuisance, the indictment alleges that the defendant kept and maintained
The only claim made that the defendant kept or maintained a nuisance was that his dwelling-house was " used ” by him " for the illegal sale of intoxicating liquor.”
In this connection the presiding justice called the attention of the jury to the testimony of one Skidmore, who testified that, on two different occasions, he purchased intoxicating liquor of the defendant in the house described. Thereupon he gave the following instruction : "If you believe the testimony of Skid-more, that he purchased the liquor, as he testified, of this respondent, in that house, then I instruct you that this respondent would be guilty. If you do not believe that testimony, then you would not be authorized to convict him.”
We think the court withdrew from the jury what was within their province alone to decide. While the word "used” may sometimes mean " employed for a particular purpose on a single occasion or on two several occasions,” we do not think it was intended to have that restricted sense in this criminal; statute. The sale of a glass of liquor, in a dwelling-house, on two different occasions, was not intended per se to constitute the house a "common nuisance.” The word "common” strongly indicates such a construction to be erroneous. But the intention was to declare " all places ” to be " common nuisances ” whenever they should habitually or customarily be appropriated for, or converted to the purpose of the illegal sale of such liquor. Two sales would not as matter of law constitute it a nuisance. The evidence of such sales would be competent for the jury to consider upon the issue whether or not the house was habitually employed by the defendant for the purpose of selling contrary to law. And if it satisfies them beyond reasonable doubt that the defendant was in the habit of so selling therein, they might so find. The weight or value of such testimony was within their exclusive province, and it was erroneous for the court to fix the weight or value which they should give it. Com. v. McArty, 11 Gray, 456. Exception sustained.
