
    Commonwealth vs. Henrietta Fields.
    Essex.
    November 3, 1875.
    Wells, Colt & Morton, JJ., absent.
    At the trial, on appeal from a Police Court, of a complaint for a sale of intoxicating liquor to a person unknown, if the evidence corresponds with the allegation of the complaint, the jury may, in the absence of proof to the contrary, presume the of-fence proved to be the same as that of which the defendant was convicted in the Police Court.
    Complaint to the Police Court of Gloucester for an unlawful sale of intoxicating liquors at Gloucester, “ to a man whose name is unknown ter the complaisant,” on July % 1875. At the trial on appeal, in the Superior Court, before Pitman, J., there was only one witness for the government, and he testified that he went into a shop in Gloucester, in which there was a bar and bottles and other things usually found in a bar-room; that he saw four men standing at the bar, and the defendant standing behind it; that he heard the four persons severally call for intoxicating liquors, each designating the kind ; that the defendant passed to each a ^tumbler with liquor which was drunk, that he saw one of them pay ten cents for his drink; that witness then went out; that whether the others did or did not pay he did not know; and that he was a witness before the Police Court in this case and testified to the same there. This being the whole evidence upon the question of sale, the defendant’s counsel asked the judge to instruct the jury that as the evidence uncontradicted proved four distinct sales, and there was no evidence to show on which one the complaint was made, or on which the court below convicted, the defendant should be acquitted. But the judge declined to so instruct the jury and left it to them to decide, under general instructions not otherwise objected to than on the ground above stated, as a question of fact, for what the complaint was made and conviction had in the lower court. To which rulings and refusals to rule the defendant alleged exceptions.
    
      C. A. Benjamin, for the defendant.
    
      C. R. Train,
    Attorney General, for the Commonwealth, was not called upon.
   By the Court.

In the absence of proof to the contrary, the jury were authorized to find that the offence of which they found the defendant guilty was the same as that of which he had been convicted in the Police Court. Commonwealth v. Burke, 14 Gray, 81. Commonwealth v. Carroll, 15 Gray, 412. Commonwealth v. Carr. 111 Mass. 423. Exceptions overruled.  