Commonwealth v. Certain Intoxicating Liquors

97 Mass. 332

Opinion

Foster, J.

This is a process under Gen. Sts. c. 86, § 42, to search for intoxicating liquor a tenement in a house occupied by John Trainor, and must be deemed to be a process to search a dwelling-house. Commonwealth v. Certain Intoxicating liquors, 6 Allen, 599.

G. F. Verry 8f M. I. Me Cafferty, for the claimant. C. Allen, Attorney General, for the Commonwealth.

The allegation relied upon to justify the search of this dwelling-house is in these words: “ the same being a place of common resort.” We cannot regard this phraseology as sufficient to satisfy the requirements of Gen. Sts. c. 86, § 43, by which “ no warrant shall issue for the search of a dwelling-house unless a tavern, store, grocery, eating room or place of common resort is kept therein.” There may be a place commonly resorted to or of common resort which is not kept as such by any person. But the statute contemplates a place kept for the purposes of common resort; i. e. appropriated to such purposes by the occupant, keeper or person having the control of the premises.

It has been adjudged that the averment that a defendant kept a tenement used for illegal gaming was not equivalent to one that he kept a tenement resorted to for that purpose. Commonwealth v. Stahl, 7 Allen, 304. The statute now under consideration calls for the application of a similar distinction, which the strict rules of criminal pleading require us to recognize and maintain.

Exceptions sustained. Proceedings to be quashed

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Similar decisions were made at the same term in the case of Commonwealth vs. Certain Intoxicating Liquors, Cornelius H. Manniz, claimant, argued by the same counsel as was the foregoing case, and in the case of Commonwealth vs. Certain Intoxicating Liquors, Patrick McSweeney, claimant, argued by T. L. Nelson, for the claimant, and C. AUen, Attorney General, for the Commonwealth.