Commonwealth v. Thayer

49 Mass. 525

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1844
• Status: Published

Opinion

Dewey, J.

The question whether the defendant sold the liquor, as alleged in the complaint, was submitted to the jury under proper instructions. The government alleged a sale to Albert Hersey of one glass of spiritous liquor, and was bound to establish the fact. To constitute such sale, there must be the assent of the two parties; there must be a vendor and a vendee. But no words need be proved to have been spoken. A sale may be inferred from the acts of the parties, and no disguise which the parties may attempt to throw over the transac tion, with a view of evading the penalty of the law, can avail them, if in truth such sale is found to have taken place. The ruling of the presiding judge, as to the payment of any part of the money, and the receipt thereof in payment for the liquor, constituting a sale, was correct.

It is no objection to the form of the complaint, that the sale of the cake was not set forth. The law does not require, in such cases, a contract of sale to be set out with all the terms, conditions and stipulations, or the precise consideration paid for the thing purchased. It only requires a direct allegation of a sale of liquor, leaving the circumstances to be disclosed by the evidence offered to support the charge.

Exceptions overruled,