Chapman, C. J.
The magistrate properly made his proceedings returnable to the criminal term of the superior court to be held in December, instead of the civil term to be held in October; for civil business only can be done at the civil term, and criminal business at the criminal term.
The complaint contains a sufficient description of the vehicle in which the liquors were kept, without the words which are said to be insensible and unintelligible, and these words were properly rejected as surplusage.
The allegation of the intent to sell conforms to the provisions of the St. of 1869, c. 415. The seizure, the complaint and the warrant were under §§ 37, 44, 57. The criminal intent of the person who has the liquor in the vehicle arises from his having [392]*392reasonable cause to believe that it is intended for sale in violation of the act. The proceeding is in ram, the liquor being regarded by the statute, under these circumstances, as a nuisance. It may be seized and taken into custody, but a complaint must then be made, and when made it relates to the time when the seizure was made and not to a subsequent period when the officer has the liquor in custody.
If the person having it in the vehicle has reasonable cause to believe that the person to whom he is carrying the liquor intends [393]*393to sell it illegally, he is aiding and abetting him in making it subject to seizure. The allegation of intent in the complaint is in conformity with this view.
His declarations as to what he is doing with the liquors, and how he intends to dispose of them, are admissible, being evidence against him. It was- also pertinent to prove that Maloney, to whom he was carrying the liquors, kept a saloon, for it tended to prove the purpose for which he was procuring the liquors.
It is objected that the verdict finds no proper issue, and that judgment should not be rendered thereon. The judgment is not to be against Smith or Maloney, but against the liquor and casks. The verdict therefore ought to relate to the condition of the liquor, in respect to its being a nuisance. It should also follow the complaint, which is, that the liquor was kept by Smith in a vehicle, and was being conveyed to Maloney, who intended to sell it in violation of law, Smith having reasonable cause to believe, &c. The defect in this verdict is, that it does not find that Smith had the reasonable cause alleged for believing the intent of Maloney. This is a material fact, and should have been found.
Exceptions as to the verdict sustained; and the other exceptions overruled.
Before the jury were empanelled for the new trial, the claimant moved that the proceedings be quashed for want of jurisdictian, “ because the process of seizure would not he against a carrier transporting liquor to a person other than himself, and intended for illegal sale by that other person; ” and the motion was overruled.
At the trial, before Dewey, J., Nichols was called again as a witness for the Commonwealth, and testified that about half past eleven o’clock on the night of Saturday, September 11, 1869, he went, with assistants, to the freight depot of the railroad station in Northampton, “ and found Ansel Smith just driving away with a load of the liquor in controversy, and required him to stop, and asked him where he was going; that the load was made up oi seven barrels of liquor; and that another wagon was at the depot, [394]*394being loaded, but at the approach of the witness and before he could reach the second wagon the liquor was rolled from it back into the car.”
In the course of this testimony, Nichols was asked by the attorney for the Commonwealth what Smith replied when the witness asked him where he was going with the liquor; the claimants objected to the admission of Smith’s declarations for any other purpose than to show his own violation of the law; and the answer of the witness, that Smith replied “ that he was going to Patrick Maloney’s,” was admitted only for that purpose. It also appeared that Smith made a similar statement to Ignatius L. Randall, another witness for the Commonwealth.
“ Nichols also testified that, as Smith was driving out of a narrow lane which leads from the railroad station into Main Street, he stopped and hesitated to go on in the direction in which he was told to go by the constables; and that near the wagon at this point he saw Maloney in company with three or four others, but could only distinguish Maloney, and could not say whether he stopped or riot, and did not hear him say anything. Randall, who was also accompanying the team, testified that he saw Maloney and the others, but could only recognize Maloney; that Maloney said ‘ Drive on; ’ and that that was all he heard him say.
“ Nichols and Randall both testified that Maloney at the time of this seizure kept a saloon on Main Street in Northampton, and had been keeping such saloon; and that he had since added a grocery; but there was no testimony that he kept intoxicating « liquors in said saloon.”
The testimony as to the disposition made of the liquors after their seizure, and as to all the subsequent proceedings, was the same in substance as on the former trial.
The claimants, after the evidence was all in, requested the judge to rule that there was not sufficient evidence to show that the liquor was intended for sale by Patrick Maloney; but he refused so to rule.
Upon proper issues framed for the jury, they returned the fol lowing verdict: “ The jury find that the liquors described in the complaint were by Ansel Smith kept as alleged therein and in[395]*395tended fcr sale by Patrick Maloney, in violation of the provisions of the four hundred and fifteenth chapter of the statutes of this Commonwealth for the year eighteen hundred and sixty-nine, and that Ansel Smith had reasonable cause to believe that Patrick Maloney intended to sell the same in violation of the provisions of said statutes.” The claimants alleged exceptions, which were argued at September term 1872.
C. R. Train, Attorney General, for the Commonwealth,
to the point of the sufficiency of the evidence for the jury, cited Commonwealth v. Gillon, 2 Allen, 505.
Delano, for the claimants, upon the point of want of jurisdiction, repeated his former argument on that question; and'argued further as follows: There was no sufficient evidence of an intent on the part of Maloney illegally to sell the liquors, and the judge should have ruled so. Smith’s statements were hearsay so far as Maloney was conoemed, and were properly rejected m the question of Maloney’s intent to sell. The only other evidence came from Nichols and Randall. They saw Maloney on the street, and one of them heard him say “ Drive on; ” and they both, testified that he kept a saloon, but there was no evidence that he kept intoxicating liquors in his saloon. The question then is, whether, assuming, as the law presumes, that Maloney was walking the streets as an innocent man, it is enough to overcome that presumption, that one witness heard him say “ Drive on,” the only other fact being that he kept a saloon; or, in other words, if a saloon-keeper says “ Drive on,” to a truckman who has liquor on his cart, is it either a conclusion of law or presumption of fact that the saloon-keeper intends illegally to sell that liquor. Commonwealth v. Packard, 5 Gray, 101. Chase v.
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Chapman, C. J.
The magistrate properly made his proceedings returnable to the criminal term of the superior court to be held in December, instead of the civil term to be held in October; for civil business only can be done at the civil term, and criminal business at the criminal term.
The complaint contains a sufficient description of the vehicle in which the liquors were kept, without the words which are said to be insensible and unintelligible, and these words were properly rejected as surplusage.
The allegation of the intent to sell conforms to the provisions of the St. of 1869, c. 415. The seizure, the complaint and the warrant were under §§ 37, 44, 57. The criminal intent of the person who has the liquor in the vehicle arises from his having [392]*392reasonable cause to believe that it is intended for sale in violation of the act. The proceeding is in ram, the liquor being regarded by the statute, under these circumstances, as a nuisance. It may be seized and taken into custody, but a complaint must then be made, and when made it relates to the time when the seizure was made and not to a subsequent period when the officer has the liquor in custody.
If the person having it in the vehicle has reasonable cause to believe that the person to whom he is carrying the liquor intends [393]*393to sell it illegally, he is aiding and abetting him in making it subject to seizure. The allegation of intent in the complaint is in conformity with this view.
His declarations as to what he is doing with the liquors, and how he intends to dispose of them, are admissible, being evidence against him. It was- also pertinent to prove that Maloney, to whom he was carrying the liquors, kept a saloon, for it tended to prove the purpose for which he was procuring the liquors.
It is objected that the verdict finds no proper issue, and that judgment should not be rendered thereon. The judgment is not to be against Smith or Maloney, but against the liquor and casks. The verdict therefore ought to relate to the condition of the liquor, in respect to its being a nuisance. It should also follow the complaint, which is, that the liquor was kept by Smith in a vehicle, and was being conveyed to Maloney, who intended to sell it in violation of law, Smith having reasonable cause to believe, &c. The defect in this verdict is, that it does not find that Smith had the reasonable cause alleged for believing the intent of Maloney. This is a material fact, and should have been found.
Exceptions as to the verdict sustained; and the other exceptions overruled.
Before the jury were empanelled for the new trial, the claimant moved that the proceedings be quashed for want of jurisdictian, “ because the process of seizure would not he against a carrier transporting liquor to a person other than himself, and intended for illegal sale by that other person; ” and the motion was overruled.
At the trial, before Dewey, J., Nichols was called again as a witness for the Commonwealth, and testified that about half past eleven o’clock on the night of Saturday, September 11, 1869, he went, with assistants, to the freight depot of the railroad station in Northampton, “ and found Ansel Smith just driving away with a load of the liquor in controversy, and required him to stop, and asked him where he was going; that the load was made up oi seven barrels of liquor; and that another wagon was at the depot, [394]*394being loaded, but at the approach of the witness and before he could reach the second wagon the liquor was rolled from it back into the car.”
In the course of this testimony, Nichols was asked by the attorney for the Commonwealth what Smith replied when the witness asked him where he was going with the liquor; the claimants objected to the admission of Smith’s declarations for any other purpose than to show his own violation of the law; and the answer of the witness, that Smith replied “ that he was going to Patrick Maloney’s,” was admitted only for that purpose. It also appeared that Smith made a similar statement to Ignatius L. Randall, another witness for the Commonwealth.
“ Nichols also testified that, as Smith was driving out of a narrow lane which leads from the railroad station into Main Street, he stopped and hesitated to go on in the direction in which he was told to go by the constables; and that near the wagon at this point he saw Maloney in company with three or four others, but could only distinguish Maloney, and could not say whether he stopped or riot, and did not hear him say anything. Randall, who was also accompanying the team, testified that he saw Maloney and the others, but could only recognize Maloney; that Maloney said ‘ Drive on; ’ and that that was all he heard him say.
“ Nichols and Randall both testified that Maloney at the time of this seizure kept a saloon on Main Street in Northampton, and had been keeping such saloon; and that he had since added a grocery; but there was no testimony that he kept intoxicating « liquors in said saloon.”
The testimony as to the disposition made of the liquors after their seizure, and as to all the subsequent proceedings, was the same in substance as on the former trial.
The claimants, after the evidence was all in, requested the judge to rule that there was not sufficient evidence to show that the liquor was intended for sale by Patrick Maloney; but he refused so to rule.
Upon proper issues framed for the jury, they returned the fol lowing verdict: “ The jury find that the liquors described in the complaint were by Ansel Smith kept as alleged therein and in[395]*395tended fcr sale by Patrick Maloney, in violation of the provisions of the four hundred and fifteenth chapter of the statutes of this Commonwealth for the year eighteen hundred and sixty-nine, and that Ansel Smith had reasonable cause to believe that Patrick Maloney intended to sell the same in violation of the provisions of said statutes.” The claimants alleged exceptions, which were argued at September term 1872.
C. R. Train, Attorney General, for the Commonwealth,
to the point of the sufficiency of the evidence for the jury, cited Commonwealth v. Gillon, 2 Allen, 505.
Delano, for the claimants, upon the point of want of jurisdiction, repeated his former argument on that question; and'argued further as follows: There was no sufficient evidence of an intent on the part of Maloney illegally to sell the liquors, and the judge should have ruled so. Smith’s statements were hearsay so far as Maloney was conoemed, and were properly rejected m the question of Maloney’s intent to sell. The only other evidence came from Nichols and Randall. They saw Maloney on the street, and one of them heard him say “ Drive on; ” and they both, testified that he kept a saloon, but there was no evidence that he kept intoxicating liquors in his saloon. The question then is, whether, assuming, as the law presumes, that Maloney was walking the streets as an innocent man, it is enough to overcome that presumption, that one witness heard him say “ Drive on,” the only other fact being that he kept a saloon; or, in other words, if a saloon-keeper says “ Drive on,” to a truckman who has liquor on his cart, is it either a conclusion of law or presumption of fact that the saloon-keeper intends illegally to sell that liquor. Commonwealth v. Packard, 5 Gray, 101. Chase v. Breed, Ib. 440. Commonwealth v. Snow, 14 Gray, 385. Commonwealth v. Merrill Ib. 415. Cochrane v. Boston, 4 Allen, 177.
The point is again made, that the seizure process does not lie against a carrier transporting liquor to a third person as the owner, to be illegally sold by that person. The decision at the former hearing covered that point, and was affirmed at November term 1871 for Essex, in the case of Commonwealth v. Intoxicating Liquors, Hugh Owen, claimant. We see [396]*396no reason to doubt its correctness. The language of the thirty-seventh section of the St. of 1869, e. 415, describes a carrier who does not intend to sell the liquor himself, but has reasonable cause to believe that the person to whom he is carrying it intends to sell it unlawfully, and makes him liable „o a fine. Section 44 makes the liquor liable to be seized in his vehicle, upon complaint as specified. Section 57 authorizes the seizure by certain officers without warrant. These provisions are not modified by the language of any other section. The seizure is a proceeding in rem against liquor in transitu. If the person to whom it is to be carried intends to sell it unlawfully, and the carrier has reason to believe this, it is subject to forfeiture as a nuisance. When a claimant comes in, it is the liquor that is the subject of controversy.
The evidence in this case, as to the business, the acts and the language of Maloney, was pertinent, and also the acts and language of the carrier; and we think it was sufficient to authorize the findings of the jury.
Exceptions overruled.
A similar decision upon this point was made at November term 1871 in Essex, in the case of
Commonwealth vs. Certain Intoxicating Liquors, Hugh Owen, claimant.
Complaint under the St. of 1869, c. 415, to a trial justice in Essex, on September 10, 1869, for a warrant to search “ a certain vehicle, to wit, a certain wagon, driven by said Owen,” for intoxicating liquors which it alleged were on September 9, 1869, “and still are” kept and deposited by him-therein, “ said liquor kept, deposited and being conveyed to another person other than the said Owen, whose name to the said complainants is now unknown, and said unknown person intending to sell said liquor in violation of” the St. of 1869, c. 415, “ and the said Owen then and there having reasonable cause to believe that the said liquor ” “ is so intended for illegal sale,” &e. The warrant issued thereon conformed to these allegations.
After the decision reported in 105 Mass. 468, the case was tried in the superior court before ¡ácudder, J., who made a report thereof, which referred to the complaint and warrant and continued as follows: “ At the hearing of the question whether the liquors should be forfeited, it appeared, among other things, that the vehicle and liquors described in the complaint had. been seized by one of the complainants (an officer) the day before the complaint was made, without a warrant; and that they were still in his custody, and not in that of said Owen, when said complaint was made and sworn to, and when said warrant was issued. Thereupon the defendant objected that the proceedings could not 3e maintained; but I overruled this objection and instructed the jury that the variance was not material. A verdict having been rendered for the Commonwealth, I report the case for the determination of the supreme judicial court.”
W. D. Northend, for the claimant.
C. Allen, Attorney General, for the Commonwealth.
By the Court. The question raised has been settled in the case in Hampshire of Commonwealth v. Intoxicating Liquors, Tuttle $■ another, claimants. The statute regards the liquors as a nuisance, and the complaint relates to the time of seizure and not to the.time when the offir'r has them in custody.
Judgment on the verdict.