Copyright
Unknown.

Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) online

. (page 43 of 85)
Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) → online text (page 43 of 85)
Font size
QR-code for this ebook


sellers of wine, brandy, rum, and other spirituous liquor, to be
used and drank in the dwelling-house of them the said R. and
C. there situate, and by them the said R. and C. then and there
actually used and occui)ied, without being first duly licensed
therefor according to law, against, etc. {Conclude as in book 1,
chapter 3.)

(d) Com. V. Tower, 8 Mete. 527. The defendants moved that judgment be
arrested from the insufficiency of the indictment.

Dewey, J. — "1. It is no valid objection to this indictment, that it includes
two persons. The acts therein charged, as constituting the offence, may well
be done by two or more jointly ; and whenever several may join in the otFence,
they may properly be united in the same indictment.

"2. The objection that this indictment is bad because it avers the ofTence to
have been committed ' on the first day of May last past, and on divers other
days and timps between that day and the day of taking this inquisition, cannot
avail. It is no objection that such continuous change is made, and it accords
with the forms usually adopted. Such was the case in Com. v. Odlin (23 Pick.
275). and it seems well adapted to the description of the oft'ence.

"3. It is then contended that the negative averment required to constitute a
good indictment for the offence, viz., the allegation that the party was not duly
licensed to make such sale, was not properly set forth in this indictment. The
argument assumes that the allegation, ' without being first duly licensed there-
for,' must by strict grammaticid rules apply to the next antecedent sentence,
and therefore qualifies the allegation that the defendants occupied a certain
dwelling-house, and does not negative their authority to sell spirituous li(pior.
This is a reading of the indictment which we cannot sanction. The dwelling-
house is introduced as the place where the liquor was used, and the averment,
' without being first duly licensed therefor, ' clearly refers to the sale of the
liquors, and not to the place where they are used. See The State v. Jernigan,
3 Murph. 19.

"4. It is then said, tliat if this negative averment be not insufficient for the
reasons last stated, it is defective, inasmuch as it only negatives a joint license
to the two, and this would be true, although one of the defendants had been
duly licensed. Now, it seems quite clear that this is only a formal objection; as
upon proof of a license to either of the defendants, such license would consti-
tute, as to that defendant, a good defence to tliis indictment. Further, we think
that, although it would have been more technically correct to liave alleged that
the defendants had not, nor either of them, any license to sell sj)irituous li(juors,
yet the allegation, in its present form, may well be taken to apply to both, and
that individually and severally, as well as jointly."

373



(808) OFFENCES AGAINST SOCIETY.

(807) Selling liquor without license^ under Mass. Rev. Sts.
ch. 47, § 3.(e)

That, etc., on, etc., at, etc., without any authority or license
therefor duly liad and obtained according to law, did presume to
be, and was a retailer of spirituous liquors in less quantity than
twenty-eight gallons, and that delivered and carried away all at
one time, and did then and there sell and retail two quarts of
spirituous liquor to L. J., against, etc., and contrary, etc. {Con-
clude as in book 1, chapter 3.)

(808) Another form under same.{f)

That A. B., on, etc., at, etc., and there on divers other days
and times between the first day of January last and the first
Monday of May, did presume to be and was a retailer and seller
of wine, runj, brandy, and other spirituous liquor in a less quan-
tity than twenty-eight gallons, and that delivered and carried
away all at one time ; he the said B. then and there not being

(e) See Goodhue v. Com., 5 Mete. 55.3, wliere this form was held good. In
Com. V. Kimbidl (7 Mete. .304), an indictment under the same section, without
any averment of the sale of a specific quantity to A. B., but with the charge
inserted, " did presume to be and was a retailer to one A. B. of spirituous
licjuors," etc., was somewhat (jueruously sustained, it being said, "the expres-
sion is not one which is tlie best adapted to state this offence with the greatest
precision and clearness, nor is it according to a])])roved forms. It is not, how-
ever, such a defect as re(piires us to cpiash the indictment as insufficient." After-
wards, in Com. v. Simpson (t) Mete. 1.38), it was determined that when the
first seament of the indictment, charging the defendant with l)eing a retailer of
s])Irituous li(|Uors, etc., was badly pleaded, it might be stricken out as sui-plusage,
an<l judgment entei'cd ujjon the averment of a single illegal sale contained in the
latter bi'anch of the count. See also Com. v. Pray, 13 I'ick. o59 ; Com. v.
Odlin, 2.3 Pick. 275.

( / ) Com. r. Bryden, 9 Mete. 1.37.

The defendant, after nolo contendere entered, moved in arrest of juilgment,
because the indictnu-nt did not chai-ge the time when he sold s])irituons li(iuor
in a less (|uantity than twenty-eight gallons, etc., with the certainty and ])re-
cision recpiired bylaw, so as to enabh' the court to ri'uder judgu»ent of guilty,
or so us to apprise him of the precise offence of which he; stood charged, and
enable him to prepare for his defence. This motion was overruled by the
municipal court, and the defendant thereon alleged exceptions.

Dewey, J. — " Knongii is set fnrtli in tlie indictment to constitute tlie ollencc
of a single act of selling spirituous li(|Uor without Ix'iug duly licensed, if we
strike out all that y)art which charges generally that the defendant, ' on divers
days and times between the first day of .Jaunai-y and the first i\b)iiday of May,
was a retailer ami seller of wine, rnni, brandy, and other sj)iritnous licjuors.'
This, we tliink, may b(' stricken out, upon the autiiority of Com. u. Pray, 13
J'ick. .35f», and the People v. Adams, 17 Wend. 4(J5."

Kxceptions overruled.

374



SELLING INTOXICATING LIQUORS. (810)

duly first licensed as a retailer of wine and spirits, as is provided
by law and in the fortj'-seventh chapter of the revised statutes
of said commonwealth ; and lie did then and there sell and retail
spirituous liquor to a person whose name is J. C, in a certain
quantity less than twenty-eiii!;ht gallons, and that delivered and
carried away at one time, to wit, in the quantity of half a pint,
against, etc. {Conclude as in book 1, chapter 3.)

(809) Another form under same.

That A. B., of, etc., on, etc., at, etc., and there on divers other
days and times between the first day of last and the said

first Monday of did presume to be and was a retailer and

seller of wine, brandy, rum, and other spirituous liquors in a less
quantity than twenty-eight gallons, and that delivered and car-
ried away all at one time ; he the said then and there not
being duly first licensed as a retailer of wine and spirits, as is
provided by law and in the forty-seventh chapter of the revised
statutes of said commonwealth; and he did then and there sell
and retail wine and spirituous liquors to a person and to persons
whose names to said jurors are not yet known, in a certain
quantity less than twentj^-eight gallons, and that delivered and
carried away at one time, against, etc. {Conclude as in book 1,
cha2)ter 3.)

[For a form under stat. of 1855, ch. 405, prohibiting the keeping
of a building for the sale of intoxicating liquors, etc., not in
tJie original package, etc., and without license, etc., see Com. v.
Quimi, 12 Gray^ 178.]

(810) Violation of license laws in Ehode Island,

That A. B., of Warren, in the aforesaid county of Bristol,
trader, alias grocer, alias merchant, between the first day

of June, in the year of our Lord one thousand eight hundred
and forty-five, and the tenth day of jSTovember, in the year of
our Lord one thousand eight hundred and forty-five, and within
the said times, with force and arms, at Warren aforesaid, in the
aforesaid county of Bristol, did sell in the possessions of

him the said A. B., to wit, in a certain shop, situate in the town
of Warren, in the aforesaid county of Bristol, strong liquor, to

575



(812) OFFENCES AGAINST SOCIETY.

wit, rum, by retail in a less quantity thau ten gallons, without
license first had and obtained from the town council of the said
town of Warren, against, etc., and against, etc. {Conclude as in
book 1, clia-pter 3.)

And the jurors aforesaid, upon their oaths aforesaid, do further
present, that the said A. B., between the said first day of June,
in the year of our Lord one thousand eight hundred and forty-
five, and the said tenth day of November, in the year of our
Lord one thousand eight hundred and forty-five, on divers Sun-
days within said last mentioned times, with force and arms, at
"Warren aforesaid, in the aforesaid county of Bristol, did sell,
and suffer to be sold, in his possessions there situate, ale, wine,
and strong liquors by retail in a less quantity th.ui ten gallons,
without license first had and obtained from the town council of
the said tOAvn of Warren, against, etc., and against, etc. {Con-
clude as in book 1, chapter 3.)

(811) Same in NeiD York.(g)

That J. A., at, etc., on, etc., and on divers other days and
times between that day and the day of the finding of this in-
dictment, to wit, etc., did sell by retail to divers citizens of this
state, and to divers persons to the jurors aforesaid unknown, and
did deliver in pursuance of sale to the said divers citizens, and
the said divers persons to the jurors aforesaid unknown, strong
and spirituous liquors and wines, to wit, three gills of brandy,
three gills of rum, three gills of gin, three gills of whiskey, three
gills of cordial, three gills of bitters, three gills of wine, to be
drank in the house, store, shop, and grocery of the said J. A., in
the city of Utica aforesaid, without having obtained a license
therefor as a tavern-keeper, and without being in any other way
authorized, against, etc. {Conclude as in book 1, chapter 3.)

(812) Same in New Jersey.

That A. B., late of, etc., on, etc., at, etc., unlawfully did sell
by retail, and cause and knowingly permit to be sold to C. D.,
certain ardent spirits, the said ardent spirits then and there not

((j) Tliis fVirin is (onnd in People v. Ailains, 17 \\ Ciid. 47."). T!u> coiiliiiiKiiKln
and tlic snpiTlluoiis allci^iitioiiM ol* rum, etc., wlii<li tlu- proof dous not liil, may
be discliiirgcd as surplusage.

376



SELLING INTOXICATING LIQUORS. (813)

having been compounded and intended to be used as medicine,
by less measure than one quart, to wit, one without license

for that purpose first had and obtained in the manner prescribed
by the statutes in that case made and provided, to the evil exam-
ple, etc., contrary, etc., and against, etc. {Conclude as in book 1,
chapter 3.)

That the said A. B., on, etc., at, etc., unlawfully did sell, and
cause and knowingly permit to be sold to the said C. D., a cer-
tain composition, of which ardent s[»irits did then and there
form the chief ingredient, the said composition then and there
not having been compounded and intended to be used as medi-
cine, by less measure than one quart, to wit, one without
license for that purpose first had and obtained in the manner
prescribed by the statutes in that case made and provided, to
the evil example, etc., contrary, etc., and against, etc. {Conclude
as in book 1, chapter 3.)

That the said A. B., on, etc., at, etc., unlawfully did sell, and
cause and knowingly permit to be sold to the said C. D., certain
mixed liquors, the said mixed liquors then and there being ardent
sj)irits, by less measure than five gallons, to wit, without

license for that purpose first had and obtained in the manner
prescribed by the statutes in that case made and provided, to
the evil example, etc., contrary, etc., and against, etc. {Conclude
as in book 1, chapter 3.)

(813) Same in Pennsylvania.{h)

That J. B., late of, etc., on, etc., and on divers other days
and times, as well before as afterwards, at, etc., did keep a tip-

(/() Com. V. Biiird, 4 S. & R. 141.

Duncan, J. — "The motion in arrest of judgment will be first disposed of, in
doing which it will be proper to consider the various legislative provisions on
this subject. The act of 1710 (1 Smith's Laws. 73) provides that no person,
without license from the justices, shall keep a public house of entertainment,
tippling-house, or dram shop, under the penalty of five pounds, one-half thereof
to the governor, and the other half to the use of the poor of the city or town-
ship where the ofience shall have been committed. By a supplement to this
act, passed 2l>th August, 1721 (1 Smith's Laws, 127), it is enacted, that no per-
son not *[ualified as by the above recited act shall presume to sell, or barter
with or deliver, any wine, rum, etc., which shall be used or drank in their houses,
yards, or sheds, or shall be so used or drank in any shelter, place, or wood, near
or adjacent to them, with their privity or consent, by any companies of negroes,
servants, or others, or retail or sell to any person or persons whatsoever any
rum, brand\-, or other spirits, by less quantity or measure than one quart, nor

377



(813) OFFENCES AGAINST SOCIETY.

pling-house, without any license so to do first had and obtained
according to law, and then and there without such license, com-

any wine, by any less measure or quantity than one gallon, nor any beer, ale, or
cider, by any less (juantity than two gallons, and the same licjuors respectively,
delivered to one person and at one time, under the same penaltv as is prescribed
by the act of 1710. By the act of 19th INlarch, 1783 (3 Smith's Laws, 65), it
is provided, that if any person or persons shall hereafter retail and sell less than
one quart of rum, wine, brandy, or other spirits, to be delivered at one time to
one person, without having first obtained a license agreeably to law for that pur-
pose, he or they shall forfeit and pay for every such offence the penalty of ten
pounds.

"The most solid objection to this indictment is the omission to state that the
liquor was delivered at one time and to one person ; and I own that if this were
res Integra^ it would be difficult to answer. But it will be observed, that the
same words are used in the act of 1721\ ' and the same liquors respectively de-
livered to one person and at one time ; ' and in the act of 1 783, ' shall sell or
retail less than one quart, and to be delivered at one time and to one person.'
The only alteration in the act of 1817 is, that in the city and county of Phila-
delphia the offence is to consist of selling less than one pint, instead of one quart,
the penalty is increased, and in the distribution of the penalty. Keeping a tip-
pling-house is still an offence. Keeping a tippling-house in the city and county
of Philadelphia, the overt act being the retailing of li(|Uor by less measure than
one pint, is punishable under this statute. This form of indictment having ])re-
vailed for eighty years, been adopted by successive attorney-generals, the pro-
visions of the several acts being nearly if not altogether in the same Avortls, the
court will not say that all the prosecutions during that long period of time are
erroneous ; for it is admitted that this has been the only form. A continued
and contemporaneous practice under a statute, in a matter merely foi-mal, ought
not liglitly to be disturbed. The court have less difhculty in deciding the re-
maining points. Tlie only remedy is by indictment. The keeping a tij)pling-
house is an indictable oH'ence. The general prohibition, under penalty, to sell
li(jnors by less measure tliaii one ([uart would, it is admitted, render the act
indictable, unless sonu; particular mode of recovering the penalty is prescribed ;
and the remedy by action is inferred from the use of the words 'costs of suit,'
in the second section. Tiiis ajjpears a forced inference, not warranted b}' a just
construction of the whole act ; for how in a yMt tfun action coidd the court sen-
tence the oircnder, if convicted, to pay the penalty, or to the ])enitentiary liouse,
to be kept at hard labor? As to the offence being laid in tlie city, if it could
not be so laid, it would follow, that where the retailing was in tiie county it
would be exempted from punishment ; for though tlie city might be in the
county, the county could not be in tlie city. The city and county are to be
construed disjunctively. Such is the manifest declaration of tlie legislature ;
for in the distnitiition of the penalty, one lialf is to enure to the guardians of
the poor of the township or district wiicre tlie offence shall occur. Any other
construction would n-ncler the act insensible and void ; nor is there any such
irillexiijh^ ride in the coristructinn of jienal statutes, that you must abide by
the very lett<'r ; for in the ctmstruction of penal statutes the stri<'t meaning of
the ('xi)ressions has been (hsparted from, in order to comply with the manifest
spirit and intention of the law. 1 Binn. 277. Nor does regard to criminals
recjnire such construction of the words perhaps not absolutely clear, as would
teiul to destrfiy and evaile the very intention and meaning of the act. It is not
inifre(|nent in the <-oiistriii'tioii of statutes to take tlie disjunctive as a copida-
tive and the copulative as a flisjimctive, in order to make the words stand with
reason and the intent of the framers of the law. Plow. 206; 6 Cranch, 7.
They arc so to be considered hei-e. An act declaring that a particular act

378



SELLING INTOXICATING LIQUORS. C^l^)

monly and jiublicly did sell and utter, and cause to be sold and
uttered, to sundry persons divers quantities of rum, brandy, and
whiskey, and other spirituous liquors, by less measure than one
pint, contrary, etc., and against, etc. {Conclude as in book 1,
chapter 3.)

(814) Another form fo?^ same, being that used in Philadelphia.

That A. B., late of, etc., on, etc., at, etc., did sell and retail,
and cause to be sold and retailed, less than one quart of rum,
wine, brandy, and other spirituous or vinous liquors, then and
there delivered at one time and to one person, and to more than
one person, without having first obtained license agreeably to
law for that purpose, contrary, etc., and against, etc. {Conclude
as in book 1, chapter 3.)

(815) Same in Virginia.{i)

That W. T., late of, etc., on, etc., unlawfully, and without
then having a license therefor according to law, at the store of
said W. T., in the county of Wood, and within the jurisdiction
of the county court of said county, did sell by retail, whiskey,
brandy, and other liquors to the jurors unknown, and mixtures
thereof, to J. N"., to be drank at the said place where sold as
aforesaid, contrary, etc. {Conclude as in book 1, chapter 3.)

(816) Same in North Carolina.

That A. B., late of, etc., at, etc., on, etc., and on other days
both before and since that day up to the taking of this inquisi-
tion, unlawfully and wilfully did sell and retail to one C. D.,
and to other persons to the jurors unknown, a quantity of
spirituous liquors by the small measure, viz., by a measure less
than one quart, he the said A. B. having there and then no
license so to sell and retail, contrary, etc., and against, etc.
{Conclude as in book 1, chapter 3.)

committefl in the counties of Philailolpliia and Bucks, should bo punished in a
certain manner, necessarily means in either county, tor it could not be com-
mitted in both ; it describes a certain district consistinji of two counties ; if not
so considered, the offence never could be committed ; it could not be committed
in both counties."

(/) See Tefft r. Com., 8 Leiiih, 721.

379



(818) OFFENCES AGAINST SOCIETY.

(817) Same in Alabama.

That A. B., late of, etc., on, etc., in the county aforesaid, did
sell spirituous liquors, to wit, rum, brandy, and whiskey, in less
quantity than one quart, without license, to one C. D., and to
divers other persons whose names are to the jurors aforesaid
unknown, contrary, etc., and against, etc. {Conclude as in hook
1, chapter 3.)

And the jurors aforesaid, upon their oath aforesaid, do further
present, that said A. B., on the day and year aforesaid, in the
county aforesaid, did sell ardent spirits, to wit, rum, brandy, and
whiskey, in quantities of one quart, by the quart, without license,
to one C. D., and to divers other persons whose names are to the
jurors aforesaid unknown ; and that the said rum, brandy, and
whiskey was then and there drank and consumed on the prem-
ises of him the said A. B., contrary, etc., and against, etc.
{Conclude as in book 1, chapter 3.)

(818) Same in Kentucky.{j)

That A. B.,etc., on, etc., at, etc., did keep a tippling-house, by
then and there selling, hy the small and by retail in said tippling-
house, divers quantities of spirituous liquors, to wit, whiskey,
brandy, rum, gin, wine, etc., to divers persons to the jurors un-

[j) Overshine v. Com., 2 B. Mon. 344.

" T!ie iiKlictmont," suid tlie court, " with sufficient certainty, charges those
acts wliicli constitute keeping a tippling-house. It not only charges the selling
spirituous licjuors by retail, but also the pennittinfj the same to br drank in the
houae, and in this latter specification dill'ers from the case of Woods, etc., v.
Com. (1 B. Mon. 74), in wiiich the sellivf/ by retail only was specified. And if
it were conceded that the oifence cliai-ged is one for which a presentment might be
maintained, it would not follow that an indictment would not also be good. An
indictiiicnt embraces all the recjuisitt's of a good presentment, and even more,
nainclv, tlur signature of the attorney for the commonwealth, which cannot render
it ba<l as a i)reseiitmeiit. Nor can the fact tiiat an indictment has been found
for an oU'ence for which a presentment would lie, ])revent the court trom assessing
the fine without the intervention of a jury in any case in which he could assess it
upon a pri'scntment. Nor is the olijectiou that tlu- foreman of the grand jury
lias signed the indictment under the words ' a true bill,' indorsed on the same,
sustaiiialile. 'J'lie statute of 1K14 (Stat. Law 1st, r)4l), according to its gram-
matical construclion, re(|uires indictments as well as presentments to be sif/ncd
by till! foreman ; it does not direct ii-hcrr the signature is to be placed ; and though
it may lie iiii|)lied that it was inteinled to be placed at the footof tlu' presentment
or indictment, as the object of the signature was to show the court that it liad been
passcfl u|)oii and found by the grand jury, this is as well sliowii by an indorsement
of his signature as i>y ])laf;ing it at tiie tV)ot of the iiidietiiieiit, and either form, we
liave no doubt, will suffice."

380



SELLING INTOXICATING LIQUORS. (820)

known, and by then and there permitting the same to be drank
in said tijipling-house, he tlie said A. B, not then and there
being a licensed tavern-keeper, etc.

(819) Same in Tennessecik)

That D. S., late of, etc., on, etc., unlawfully did keep a tip-
pling-house, and then and there did vend and retail spirituous
liquors in less quantities than one quart, and by the quart, in-
tended to be drunk on the premises, against, etc., and against, etc.
{Conclude as in book 1, chapter 3.)

(820) Same in Mississippi.

That on, etc., A. B., etc., at, etc., did then and there unlawfully
sell and retail vinous and spirituous liquors, to wit, wine, rum,
gin, brandy, whiskey, ale, and porter, in a less quantity than one
gallon, to one C. D., and to other persons to the jurors aforesaid
unknown, contrary, etc., and against, etc. {Conclude as in book
1, chapter 3.)

That on, etc., A. B., being then and there a tavern-keeper and
innkeeper, with force and arms, at the county of aforesaid,

did then and there unlawfully, gratuitously, and without special
charge therefor, offer, give, and deliver vinous and spirituous
liquors, towit, wine, rum, gin, brandy, whiske}', ale, and porter,in
a less quantity than one gallon, to one J. Iv,, and toother persons
to the jurors aforesaid unknown; which said J. K., and which said
other persons, were then and there the guests of the said A. B.,
contrary, etc., and against, etc. {Conclude as m book 1, chap-
ter 3.)

That on, etc., the said A. B., being then and there a tavern-
keeper and innkeeper, with force and arms, at the county of
aforesaid, did then and there, by evasion, subterfuge, and



Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 2) → online text (page 43 of 85)