Commonwealth v. Dean

The St. of 1871, c. 334, authorizing a city or town to determine whether certain kinds 0$ liquors may or may not be sold within its limits, is constitutional. Vnder the provision of the St. of 1864, c. 121, that a defendant in a criminal prosecution must prove any license, appointment or authority on which he relies for justification, a defendant, prosecuted for keeping ale with intent to sell or for keeping a tenement for its sale, must prove that the sale of ale was permitted under the St. of 1871, c. 334, by the town in which the alleged offence was committed.

The first of these cases was a complaint to a trial justice against the defendant for unlawfully keeping intoxicating liquors with intent to sell the same unlawfully at North Bridgewater, on October 4, 1871. At the trial on appeal in the Superior Court, before Bacon, J., it appeared that the defendant sold ale in North Bridgewater, but there was no evidence whether the town of North Bridgewater had or had not, under the St. of 1871, e. 334,* voted to allow the liquors named in said statute to be sold within its limits. The defendant requested the judge to rule that the statute making the criminality of the act depend upon the vote of the town was unconstitutional, and also that, under the St. of 1864, e. 121,† the burden of proof to show that the town did not permit ale to be sold was on the Commonwealth; but the judge refused so to rule. The jury returned a verdict of guilty, and the defendant alleged exceptions. The second case was an indictment on the Gen. Sts. c. 87, §| 6,7, for keeping and maintaining a tenement in North Bridge-water for the illegal sale and keeping of intoxicating liquors, between July 1 and October 4, 1871. At the trial in the Superior Court, before Bacon, J., it appeared that the defendant kept ale in the tenement with intent to sell, but there was no evidence whether the town of North Bridgewater had or had not, under the St. of 1871, c. 334, voted to allow the liquors named in said statute to be sold within its limits. The defendant requested the judge to rule that, under the St. of 1864, c. 121, the burden of proof to show that the town did not permit ale to be sold was on the Commonwealth; but the judge refused so to rule. The jury returned a verdict of guilty, and the defendant alleged exceptions. The cases were argued together, by B. W. Harris §• P. H. Tucker, (J. G~. Sproat with them,) for the defendant, and Q. B. Train, Attorney General, for the Commonwealth.