Commonwealth v. Howe

79 Mass. 26

• Court: Massachusetts Supreme Judicial Court
• Decided: June 15, 1859
• Status: Published

Opinion

Metcalf, J.

We do not find anything unconstitutional in the statute on which these indictments are founded.

Howe’s motion in arrest of judgment was rightly overruled. There certainly is reason for doubting whether the first count sufficiently alleges that the defendant kept and maintained a tenement used for the illegal keeping and illegal sale of intoxicating liquors. But we need not decide that question ; for the second count, which is for the same offence, alleges that the tenement was kept, maintained and used by the defendant for the illegal keeping and illegal sale of such liquors. And as that count also alleges that the defendant “ did keep and maintain a common nuisance, to wit, a certain tenement” used for purposes which by the statute make it a common nuisance, it was unnecessary that the count should conclude ad commune nocumentum. Such conclusion would have been superfluous repetition.

Assuming that the first count is insufficient, yet judgment should be rendered on the second count, which we have found to be sufficient. Commonwealth v. Hawkins, 3 Gray, 463.

In the case of Ames, we do not perceive any material variance between the allegation and the proof of the place used by the defendant for the unlawful keeping and unlawful sale of intoxicating liquors.

In Barnes’s case, the indictment is in the form that has been used in previous cases, and been repeatedly sustained by this court. Commonwealth v. Kimball, 7 Gray, 328. Commonwealth v. Kelley & France, 7 Gray, 332, note.

The refusal of the judge, on motion of the defendant’s counsel, to instruct a witness as to her right to decline to answer interrogatories, on the ground that her answers might criminate her, was well warranted, we think, by the decision in Commonwealth v. Shaw, 4 Cush. 594. Exceptions overruled.