Commonwealth v. Sprague

128 Mass. 75, 1880 Mass. LEXIS 7

• Court: Massachusetts Supreme Judicial Court
• Decided: January 24, 1880
• Status: Published

Opinion

Morton, J.

The St. of 1875, c. 99, § 1, provides that “no person shall sell, or expose, or keep for sale, spirituous or intoxicating liquors, except as authorized in this act.” The complaint in the case at bar alleges that the defendant, at the time and place named, “ did keep intoxicating liquors with intent to sell the same in this Commonwealth,” he not being authorized to sell the same. The allegation of the complaint is equivalent to an allegation in the words of the statute, that the defendant did at the time and place named “ keep for sale ” intoxicating liquors without authority. Each allegation imports that he kept the liquors with the present intent to sell them when called for by purchasers.

In Commonwealth v. O’Keefe, 123 Mass. 252, the complaint was in the same form as in the case at bar, and it was held that the allegation was substantially the same as an averment in the words of the statute, and that the defect in the form of the allegation furnished no ground for arresting judgment. Unless the two allegations are essentially the same, the defect would be equally fatal upon a motion in arrest of judgment as upon a motion to quash the complaint.

We are of opinion that the defendant’s motion to quash was rightly overruled. Exceptions overruled.