Commonwealth v. Curran

119 Mass. 206, 1875 Mass. LEXIS 117

Opinion

Gray, C. J.

Most of the exceptions in this case are disposed of by the judgment in Commonwealth v. Fredericks, ante, 199, and the others are equally unfounded.

1. The allegation in the complaint that the defendant did expose and keep for sale intoxicating liquors, charges but a single offence, and is not bad for duplicity. Commonwealth v. Nichols, 10 Allen, 199.

2. If the defendant was proved to have kept intoxicating liquors for sale, the burden of proving that he had a license or authority so to do was upon him. St. 1864, c. 121, § 1. Commonwealth v. Kennedy, 108 Mass. 292. Commonwealth v. Leo, 110 Mass. 414. Commonwealth v. Shea, 115 Mass. 102.

3. The jury were instructed, in accordance with the defendant’s fourth request, that the burden of proof was on the government to prove that the liquors exposed and kept for sale were intoxicating, and that the jury must acquit if the evidence left them in doubt as to that fact. The addition made by the judge to this instruction was clearly correct; for § 18 of the St. of 1875, c. 99, provides that ale as well as distilled spirits shall be deemed intoxicating liquors, within the meaning of the statute.

Exceptions overruled.