Commonwealth v. O'Donnell

90 Mass. 548

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1864
• Status: Published

Opinion

Metcalf, J.

It was decided in Commonwealth v. Thorniley, 6 Allen, 445, that a license under the United States St. of 1862, c. 119, does not authorize sales of intoxicating liquor, which are (in the words of that statute) “ in violation of the laws of any state or territory ; ” and as the selling of such liquor, though not the seller’s main business, but only incidental to his lawful main business, is as much a violation of our state laws, when it is not thereby authorized, as any other unauthorized selling thereof, there is no plausible pretence for holding that such selling is protected by such license.

The questions raised by the other exceptions in these cases are settled by authority. In Commonwealth v. Bubser, 14 Gray, 83, and Commonwealth v. Cutler, decided in 1864, and not yet reported, it was adjudged that neither an acquittal nor a conviction of the charge of keeping a tenement for the unlawful sale of intoxicating liquor is a bar to an indictment for being a common seller of such liquor during the same time and at the same place. It follows that an acquittal or conviction of the charge of being a common seller of such liquor is not a bar to an indictment for keeping a tenement, during the same time and at the same place, for the unlawful sale of such liquor. The reason is precisely the same in both cases, to wit, that the two offences are not the same, but different, and that each is separately punishable. Exceptions overruled.