Commonwealth v. Ryan

75 Mass. 137

Opinion

By the Court.

1. The refusal to quash the indictment or to

order a bill of particulars was within the discretion of the presiding judge, and not a subject of exception. Commonwealth v. Hawkins, 3 Gray, 464. Commonwealth v. Wood, 4 Gray, 13. The general description of the liquors sold was no ground for arresting judgment. Commonwealth v. Conant, 6 Gray, 482.

2. The St. of 1855, c. 215, § 1, declares it to be unlawful and criminal for any person to sell any spirituous or intoxicating liquor, unless he is duly authorized so to do as thereinafter provided. This is equivalent to a provision prohibiting all sales unless authorized as provided by that act. And it is well settled as the practical construction of this and similar statutes, that since the St. of 1844, c. 102, the burden of proving such authority is upon the defendant. Commonwealth v. Kelly, 10 Cush. 69. Commonwealth v. Tuttle, 12 Cush. 502. Commonwealth v. Lahy, 8 Gray, 460. If this were a new question, it might be worthy of more consideration

Footnotes

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Exceptions overruled.

A similar decision was made in Bristol, October term 1857, in the case of Commonwealth vs. William Barrett, which was an indictment on St 1855, e. 215, § 1 7, for being a commmon seller of intoxicating liquors.

C. I. Reed, for the defendant, cited Commonwealth v. Thurlow, 24 Pick. 374 Rex v. Rogers, 2 Campb. 654; Rosc. Crim. Ev. (2d ed.) 71, 72; 2 Russell ox Crimes (7th Amer. ed.) 769, 770.

J. H. Clifford, (Attorney General,) for the Commonwealth.