Commonwealth v. Luddy

Devbns, J.

The motion to quash the complaint should not have been granted. While the defendant was a licensee, holding what is known under the statute as a fourth class license, he was not complained of, in form, for a violation of his license, but for having made a sale of liquors to be drunk on the premises of the defendant, he, the said defendant, “ not having any license, authority, or appointment to make such sale of said intoxicating liquors,” &c., “to be drunk on the said premises as aforesaid.” As by the Pub. Sts. c. 100, § 1, every person is forbidden to sell intoxicating liquor, except as he may be authorized so to do by the provisions of the chapter, this sufficiently set forth an offence as committed by the defendant. It was not necessary that the complaint should allege that the defendant was licensed under the statute, and that the sale made by him was of intoxicating liquor to be drunk upon premises of the defendant which were included within the license. Commonwealth v. O'Brien, 134 Mass. 198 . If. the defendant relied upon a license granted to him as a justification for the act complained of, it was for him to prove a license, and also that it was broad enough to justify the act. Commonwealth v. Rafferty, 133 Mass. 574 .

Nor was the defendant entitled to the ruling that, upon the evidence, as matter of law, the government had not sustained the complaint. We must presume, in the absence of any suggestion to the contrary in the bill of exceptions, that all appropriate instructions were given to the jury, and that the case was properly submitted to them, if the defendant was not entitled to the ruling requested.

The fact, that it did not appear in evidence distinctly whether the man to whom the sale was alleged to have been made was known or unknown to the complainant, is not important. The objection, that a person whose name is alleged to be unknown was in fact known, does not arise where there is no evidence *566 upon the point. It is not necessary, as a matter of affirmative proof, to offer evidence that he was in fact unknown. Commonwealth v. Thornton, 14 Gray, 41 .

Nor was it necessary to prove that the liquor alleged to have been unlawfully sold to be drunk upon the premises was in fact there drunk, although such was the allegation of the complaint. The offence consisted in selling the liquor for this purpose; it is not in any way a description of the offence to allege that the liquor thus sold was subsequently drunk on the premises. Even if the proof failed, as in the case at bar, to sustain this allegation, it could be rejected ás surplusage. Commonwealth v. O'Brien, ubi supra. McNeil v. Collinson, 128 Mass. 313 .

The defendant further contends, that there was no evidence of a delivery by him to the alleged purchaser of the liquor, or, at any rate, no evidence that such alleged purchaser was not a resident in his house, which, under the Pub. Sts. c. 100, § 26, would be required in order to furnish prima facie evidence of a sale by him. The evidence is before us only in an abbreviated form, and does not probably give the appearance, manner, and attitude of the parties as fully as these were shown to the jury. But the fact that the defendant was behind the counter, and the other party to the transaction in front, having the glass containing the liquor in his hands, and raised to his lips, and that he returned it to the counter, upon the entrance of the officer, without drinking, might satisfy the jury that the defendant was just serving or had just served the person outside the counter with liquor, and that such person was a customer who was expected to pay therefor, and not merely a resident of the defendant’s house.

Nxceptions overruled.