Commonwealth v. McCarty

6 N.E. 102, 141 Mass. 420, 1886 Mass. LEXIS 222

Opinion

Holmes, J.

The burden was on the defendant to prove a license to the actual keeper, if he justified under it. Pub. Sts. c. 214, § 12. Commonwealth v. Belou, 115 Mass. 139. Hence he cannot have been prejudiced in any way by the failure of the complaint to deny it; and, although it should be conceded that the technical rules of pleading are not affected by the statute as to the burden of proof, that the absence of a license to the actual keeper entered into the description of the offence, and that the first request for a ruling was in effect a motion to quash, still under the circumstances we think the defect in the complaint must be regarded as formal, and that the motion came too late.

We do not decide whether the defendant was required by the statute to obtain a license, because, until the defendant had introduced some evidence that the actual keeper had a license, the question did not require to be dealt with.

Exceptions overruled.