Commonwealth v. Tubbs

Dewey, J. The only question, that arises in the present case, respects the instructions to the jury, as to what facts would constitute a person a common seller of spiritous liquors. The counsel for the defendant asked the court to instruct the jury, that at least three distinct, sales of spiritous liquors must be proved, to sustain the allegation that he was a common seller of spiritous liquors. This prayer for instruction was, as it seems to us, correct. Three distinct acts of sale are necessary to constitute a common seller. Such has been the general rule as to a common barrator, and other cases of this nature. That it is insufficient to prove a single instance [4] when the charge is that of a common offender, is quite clear. The number of distinct acts necessary to be proved seems to have been considered as three, at least. In Commonwealth v. Odlin, 23 Pick. 275, the point of doubt was, not whether three distinct sales were necessary to constitute the offence, but whether there must be three distinct sales to three distinct persons, which latter fact was not deemed essential. The inquiry now is, whether one act of sale, accompanied by evidence of all the necessary arrangements for selling liquors, and being prepared, and ready, and willing to sell to all who might apply as purchasers, will constitute a common seller of liquors. It is to be remarked, that the question to be settled is not whether the evidence detailed in the report would not have authorized the jury to have found that the defendant had made three or more sales. This was not submitted to them , but they were instructed that one sale, accompanied with the other circumstances of preparation for selling, and readiness to sell, stated in the instructions, would be sufficient to constitute the defendant a common seller. We think the proper course would have been to have submitted all the evidence to the jury, with instructions that three distinct sales were necessary, and that if the evidence satisfied them that the defendant had, during the period alleged in the indictment, made three or more sales of liquors, then they would find him guilty as a common seller. The case having been put to the jury under instructions of a different character, the verdict must be set aside, and a new trial ordered.