Commonwealth v. Bartley

Morton, C. J. The substantive allegations of the complaint . in this case are that Martin Bartley, the defendant, at the time named, at New Bedford, did “ knowingly permit a certain tenement there situate, which was then and there under the control of said Martin Bartley, to be unlawfully used for the illegal sale and keeping of intoxicating liquors therein.” This was intended to be a complaint under the Pub. Sts. c. 101, § 9. This section applies to a person who, being the owner or having the control of a building or tenement, knowingly lets [182] it or permits it to be used for the illegal purpose named by a tenant holding under him. W. Clifford, for the defendant. E. J. Sherman, Attorney General, for the Commonwealth. It was intended to reach the case of a landlord who, under the preceding section, has the right to make entry upon the premises and prevent the illegal use; and, by construction, it implies that the building or tenement must be used for the illegal purpose by some third person holding under the landlord. The complaint does not aver that the tenement was used by any person named, or by any person unknown and other than the defendant. All the allegations would be met by proof that the defendant permitted his servant or agent to use the tenement for the illegal sale and keeping of intoxicating liquors, in which case he would be punishable under the seventh, but not under the ninth section of the statute. We are of opinion that this complaint lacks the certainty required in criminal pleadings, and is insufficient. Commonwealth v. Moore, 11 Cush. 600. Complaint quashed.