Commonwealth v. Certain Intoxicating Liquors

122 Mass. 14, 1877 Mass. LEXIS 68

Opinion

Endicott, J.

The claimant contends that, upon the evidence introduced by the government, there could be no forfeiture of the liquors, because it is not alleged in the complaint that a place of common resort was kept in the dwelling-house, and therefore no warrant could issue under the St. of 1876, c. 162, § 2. But it has been decided under the St. of 1869, c. 415, §§ 45, 66, now repealed, that such allegation is not necessary; that, under the provisions of those two sections construed together, a dwelling-house, used exclusively as such, might be searched, if the oath or affirmation provided in § 45, and in the form annexed to § 66, was added; and that a tavern, store, grocery, eating room or place of common resort kept therein, might be searched without such oath or affirmation. Commonwealth v Intoxicating Liquors, 108 Mass. 19. Commonwealth v. Intoxicating Liquors, 110 Mass. 182. Commonwealth v. Intoxicating Liquors, 116 Mass. 27. The language of the St. of 1876, c. 162, §§ 2,17, and of the forms annexed to § 17, are, so far as applicable to this inquiry, in substance the same as in the sections referred to in the St. of 1869. The complaint in this case follows the form prescribed in § 17, including the oath required by § 2, and the cases above cited are decisive of the question raised. See also Holland v. Seagrave, 11 Gray, 207.

The allegation in the complaint and warrant is not that the liquors were kept and deposited in a building occupied by the claimant as a storehouse; but in the cellar of a one and a half story wooden house, occupied by him as a storehouse. The proof was they were kept in the cellar, and there was no variance. Commonwealth v. Intoxicating Liquors, 6 Allen, 599.

Exceptions overruled.