Commonwealth v. Purdy

Holmes, J. This was a complaint under the Pub. Sts. c. 101, §§ 6, 7. The trial justice had final jurisdiction by the express words of the Pub. Sts. c. 155, § 53. The objections raised by the motion to quash are merely formal. No doubt the technically correct allegation would have been that the premises were used for the illegal sale, etc. of intoxicating liquors. Commonwealth v. Carolin, 2 Allen, 169. Commonwealth v. Welsh, 1 Allen, 1. But the allegation that they were “ kept ” for those purposes indicated the offence intended to be charged with suffir cient practical certainty to. secure the defendant from injustice, and to throw upon him the burden of taking the objection before judgment was rendered by the trial justice. Pub. Sts. c. 214, §25. The evidence of the conversation with Ide, between three and four months before the offence charged, was not admitted to prove that the defendant occupied the premises, (Commonwealth v. McNeff, 145 Mass. 406, 410,) because the bill of exceptions states that it was admitted on the ground that it appeared that the defendant did occupy them. If then we assume that the conversation related to sales in the building referred to in the complaint, still, standing by itself, it would not warrant a pre 31 sumption or inference that subsequently, at the time laid in the complaint, the building was used for the purpose of illegal sales. The defendant did not express an intent to sell, as in Commonwealth v. Davenport, 2 Allen, 299, but, on the contrary, made a conditional promise to stop selling. It is true that such a promise may be construed to admit by implication that the premises are then used for the illegal purpose ; but, for all that appears, the condition of the promise was performed, and the promise kept. An admission which is only implied from a promise not to do so any more, does not warrant a presumption that the speaker continued in his illegal course. Exceptions sustained.