Commonwealth v. McCabe

Lathrop, J. The only question in this case, which is not fully covered by the decision in Commonwealth, v. McCabe, ante, 98, is that presented by the plea of the defendant’s former conviction in that case. In the case at bar the defendant is charged with keeping, on April 29, 1893, intoxicating liquors with the intent to sell the same unlawfully in this Commonwealth. In the former case the defendant was charged with keeping and maintaining a common nuisance on April 1, 1893, and on divers other days and times between that day and December 27, 1893, to wit, a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors. These are distinct offences, and proof of the facts necessary to sustain this complaint would not be sufficient to sustain the former complaint. The conviction, therefore, of the defendant on the former complaint is no bar to this complaint, although the evidence relied upon in this complaint was a part of the evidence in the former complaint. Commonwealth v. O'Donnell, 8 Allen, 548. Commonwealth v. Hogan, 97 Mass. 122. Commonwealth v. McCauley, 105 Mass. 69. Morey v. Commonwealth, 108 Mass. 433. Commonwealth v. Hazeltine, 108 Mass. 479. Commonwealth v. McShane, 110 Mass. 502. Commonwealth v. Brelsford, 161 Mass. 61. Bxceptions overruled.