
    Commonwealth vs. Thomas Burns.
    The provision of St. 1855, c. 215, § 17, that three several sales of spirituous or intoxicating liquor shall be sufficient evidence of a violation of this section is constitutional and valid, and subjects a person making three such sales to the penalties of a common seller.
    Indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors at Marlborough on the 1st of June 1856, and from that day to the 1st of October 1856.
    At the trial in the court of common pleas, Aiken, J. instructed the jury “ that three several sales were sufficient evidence of the violation of the statute; and that the provision that three several sales of intoxicating liquor should be sufficient evidence of a violation of this statute was constitutional.” The jury convicted the defendant, and he excepted to the above rulings.
    
      C. R. Train, for the defendant.
    A “ common seller” is one who commonly and habitually sells intoxicating liquor; not one who merely makes three sales, months or years apart. The provision of St. 1855, c. 215, § 17, that “ three several sales of spirituous or intoxicating liquors shall be sufficient evidence of a violation of this section,” is beyond the constitutional power of the legislature. What shall be sufficient evidence is to be determined by the jury. If the legislature had enacted that three sales should make a party liable to the penalties of a common seller, they might have done what they intended.
    
      J. II. Clifford, (Attorney General,) for the Commonwealth, submitted the case without argument.
   By the Court.

The St. of 1855, c. 215, § 17, provides that three several sales of spirituous or intoxicating liquors, either to different persons or to the same person, shall be sufficient evidence of a violation of this section.” This amounts to a definition that three sales shall satisfy the phrase “ common seller,” within the meaning of this act, and is equivalent to saying that whoever is guilty of making three sales shall be punished in the same manner as a common seller.

Exceptions overruled  