
    Commonwealth vs. Ann McConnell.
    Having intoxicating liquor in a wagon attached to a horse, under circumstances tending to show that the possessor is carrying and peddling it from house to house, will support a complaint on St. 1855, c. 215, § 24, for keeping it with intent to sell, although it would have also supported an indictment on § 20 for illegally transporting it from place to place.
    Complaint on St. 1855, c. 215, § 24, for keeping intoxicating liquor at Milford, with intent to sell the same in this commonwealth without authority of law.
    At the trial in the court of common pleas, before Sanger, J., the evidence for the Commonwealth tended to show that “ on the day mentioned in the complaint the defendant was found in Milford in possession of a certain quantity of intoxicating liquor, which was in a wagon with a horse attached, and under circumstances tending to show that she was conveying the same and peddling the same from house to house.”
    The defendant asked the judge to instruct the jury that if the defendant was conveying the liquor from place to place with intent to sell the same in this commonwealth in violation of law, it was an offence against § 20 of St. 1855, c. 215, and not an offence under § 24, and therefore this complaint could not be maintained. But the judge refused so to instruct the jury, and instructed them that if the defendant kept liquor as charged in the complaint, it would constitute the offence described in § 24, whether the liquor was so kept in a building or in a wagon, and whether there was a horse harnessed to the wagon or not. The defendant, being found guilty, alleged exceptions.
    
      O. F. Verry, for the defendant.
    
      S. H. Phillips, (Attorney General,) for the Commonwealth.
   Shaw, C. J.

We cannot doubt the correctness of the instructions. We must assume that the complaint is in due form, as no exception was taken to it. And the evidence proves the offence charged. Why then should not the defendant be convicted ? It is said that there was a variance, because the same facts would have supported a prosecution under another section of the statute. But that does not make a variance. If the same facts prove two offences, she might be prosecuted for both; if one, then a conviction on this complaint would be a bar to any subsequent prosecution founded on the same facts.

Exceptions overruled.  