Commonwealth v. Patterson

138 Mass. 498, 1885 Mass. LEXIS 236

Opinion

Holmes, J.

The jury were instructed that, if the defendant was proprietor of the saloon, and made either of the two illegal sales that were testified to, they must return a verdict of guilty. This went too far. For, even if a single sale was sufficient evidence to warrant a conviction on this complaint, it certainly did not of itself constitute the offence set forth, or amount to more than evidence for the jury on which they might convict. A building cannot be said to be “ used ” for the illegal sale of intoxicating liquors, within the meaning of the Pub. Sts. c. 101, § 6, which makes it a nuisance, nor can the proprietor be said to “ keep or maintain such common nuisance ” within § 7, on the strength of a single casual sale, made without premeditation, in the course of a lawful business. Not only do the words “ used ” and “ keep or maintain ” import a certain degree of permanence, but the same idea is usually a part of the conception of a nuisance. • Exceptions sustained.