Commonwealth v. Kern

• Decision Date: 26 November 1888
• Citation: 147 Mass. 595,18 N.E. 566
• Parties: COMMONWEALTH v. KERN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 595

18 N.E. 566

COMMONWEALTH v. KERN.

Supreme Judicial Court of Massachusetts, Bristol.

November 26, 1888

COUNSEL

J. Brown, for defendant.

A.J. Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.

OPINION

MORTON, C.J.

When an offense is local in its nature, the allegation of place is a necessary part of the description of the offense, and it must be proved as laid. Thus it has been held that the offense of maintaining a tenement used for the illegal sale or keeping of intoxicating liquors is a local offense, like the offenses of larceny in a building, or burglary or arson, and the allegation of place is material. The locality of the tenement or building fixes the identity of the offense charged. Com. v. Heffron, 102 Mass. 148; Com. v. Bacon, 108 Mass. 26. But where an offense has no essential connection with the place in which it is committed, like the offense of simple larceny or assault, the place is not material, and need not be proved as alleged; but it is sufficient to show that the offense was committed at any place in the county. Com. v. Tolliver, 8 Gray, 386; Com. v. Creed, Id. 387; Com. v. Lavery, 101 Mass. 207. The offense of keeping intoxicating liquors, with intent to sell the same unlawfully, is different in its character from the offense of maintaining a tenement used for the illegal keeping or sale of intoxicating liquor. This offense does not involve any fixed or certain place as a part of its identity. Liquors may be kept for illegal sale in a movable vehicle or upon the person. It is not local in its nature, and the allegation of place is not material. It is sufficient if the proof shows that the illegal keeping was within the county. The defendant contends that as, under our laws, a man may be licensed to sell intoxicating liquors in one town, while he cannot in another, the allegation of place has become material. The fact that a man has a license is a matter which affects the defense or evidence, but does not change the essential character of the offense, or the mode of stating it in the indictment. Though the evidence may be different in different places, the offense is the same in all,--that of keeping intoxicating liquors with intent to sell the same unlawfully; and, whether there is a license or not, the allegation of place does not become a matter of local description of the offense. Exceptions overruled.