
    Commonwealth vs. James Burke. Same vs. Same.
    On the trial of an appeal from a justice of the peace in a criminal case, if the proof cor responds with the allegations in the complaint, the jury may presume the offence to b the same as that found before the justice, in the absence of evidence to the contrary.
    Complaints to justices of the peace on St. 1855, c. 215, § 15 for unlawful sales of intoxicating liquors. The defendant, being convicted in each case, appealed to the court of common pleas, and was there tried at December term 1858, in Middlesex, before Bishop, J., who signed this bill of exceptions :
    
      “ The only witness who testified in these two cases, (and they were tried together,) swore that he testified before the justices as to several sales of liquor, to wit, one pint of rum, at twelve cents each, at several different times, half a dozen or more. Assuming the truth of the testimony, the defendant asked the court to instruct the jury that they would not be authorized in returning a verdict against the defendant, inasmuch as it did not appear that he was tried before the justices for the same offences now sought to be proved against him. This the court refused to do ; to which the defendant excepts.”
    
      J. Q. A. Griffin, for the defendant;
    relied on Commonwealth v. Blood, 4 Gray, 31.
    
      S. II. Phillips, (Attorney General,) for the Commonwealth.
   Bigelow, J.

In the case of Commonwealth v. Blood, 4 Gray, 31, it appeared affirmatively on the evidence introduced by the government, that a different offence was attempted to be proved before the jury from that shown before the magistrate, and of which the defendant was there convicted. But if the proof at the trial corresponds with the allegations in the complaint, the jury may presume the offence proved to be the same as that proved before the magistrate, in the absence of any evidence to the contrary. Commonwealth v. Hogan, 11 Gray,

Exceptions overruled.  