State v. Day

37 Me. 244

Opinion

Shepley, C. J.

— The indictment charges upon the defendant a violation of the provisions of the Act of June 2, 1851, c. 211, § 8, by being a common seller of spirituous liquors without license.

It has been decided, that an indictment charging a person with being a common seller and with the actual sale of such liquors, did not charge more than one offence. State v. Cottle, 15 Maine, 473; State v. Stinson, 17 Maine, 154; State v. Churchill, 25 Maine, 306. The result is, that a charge of being a common seller includes a charge of making actual sales.

• By the Act approved on March 31, 1853, c. 49, § 9, it is provided, “ whenever an unlawful sale is alleged and a delivery is proved, it shall not be necessary to prove a payment, but such delivery shall be sufficient evidence of sale.” This provision is applicable, when proof of actual sales are required to convict one of the offence of being a common seller.

The Legislature may make changes in the rules of evidence, without a violation of any provision of the constitution. Oriental Bank v. Freese, 18 Maine, 109.

It has been decided, that three different sales would be sufficient to authorize a conyiction for being a common seller. Commonwealth v. Odlin, 23 Pick. 275. And that all the sales may be made on the same day. Commonwealth v. Perley, 2 Cush. 559.

All the requested instructions were properly refused.

Exceptions overruled.

Rice, Hathaway and Cutting, J. J., concurred.