State v. Kelleher

17 A. 168, 81 Me. 346, 1889 Me. LEXIS 34

Opinion

Walton, J.

The defendant is charged with the illegal keeping of intoxicating liquors in a dwelling-house and its appurtenances. No liquors were found in the dwelling-house described. The liquors seized were found in a stable. And the question is whether, upon the proof, the stable can be regarded as one of the appurtenances of the dwelling-house. We think not. A stable is not necessarily one of the appurtenances of a dwelling-house. To become such, it must be used in connection with the dwelling-house. The house and the stable must be used together as one tenement or messuage. Jones v. Fletcher, 41 Maine, 254; State v. Burke, 66 Maine, 127. In this case, the stable was not so used. The stable was used exclusively by the defendant, and the house exclusively by one Mrs. Quinn. So far as their use was concerned, they were separate and distinct tenements. Such is the uncontradicted testimony of the government witnesses. It is clear that, upon such proof, the stable can not be regarded as an appurtenance of the dwelling-house.

And this was a material variance. For in this class of cases, the offense is local in its character, and the place where it is alleged that the liquors were kept must be proved as alleged. State v. Roach, 74 Maine, 562. We think the requested instruction, that the stable was not appurtenant to the Quinn house, should have been given.

Exceptions sustained.

Peters, C. J., Daneorth, Virgin, Emery and Haskell, JJ., concurred.