
    Commonwealth versus Samuel Thurlow.
    One act of sale constitutes an offence, within the meaning of the Revised Stat. c. 47, § 3, that no person shall presume to be a retailer or seller of spirituous liquors in a less quantity than twenty-eight gallons, unless licensed as a retailer of spirits.
    An indictment, therefore, merely following the words of the statute, that the defendant presumed to be a retailer or seller of spirituous liquors, without a license, is insufficient ; it must aver, that at a time and place stated, he sold to a person named, or to a person unknown, as the case may he.
    Such án indictment must aver that the defendant was not duly licensed, and on the trial it is incumbent on the government to produce prima facie evidence of that fact, for as the county commissioners keep a record of the granting of licenses, the negative averment can be proved with facility.
    Indictment on Revised Stat. c. 47, § 3.
    The 5th count avers, that the defendant, on the 2d of October, 1836, at Rowley, “without any authority or license therefor duly had and obtained according to law, did presume to be and was a retailer and seller of spirituous liquors in a less quantity than twenty-eight gallons and that delivered and carried away all at one time, and did then and there sell and retail to one Michael Floyd two quarts of spirituous liquor.”
    The 12th, 13th and 14th counts aver, in like manner, that the defendant, on &c. at &c. did presume to be and was a retailer and seller &c., but omit the averment of a particular act of sale.
    The indictment was tried in the Common Pleas, before Cummins J. The defendant having been found guilty on the counts above mentioned, he excepted to the instructions given by the court to the jury in the matters following : —
    1. On each of the counts the attorney for the Commonwealth offered evidence of only one act of sale, and the court ruled that one act of sale under each count was sufficient in law to support the same.
    2. The court ruled that the 5th count, though it alleges only one act of sale, was nevertheless sufficient in law.
    3. The court ruled that each of the counts, although neither of them alleges a succession or number of acts of sale, was nevertheless sufficient in law.
    4. The court ruled that the counts were good, although neither of them sets forth a number of specified acts of sale, and no bill of particulars was filed in aid of the counts.
    5. The court ruled that the 12th, 13th and 14th counts were good, although neither of them alleges any specific act of sale.
    6. The court ruled that it was not necessary for the attorney for the Commonwealth to show by evidence, that the defendant had no license to sell in the manner alleged; and the attorney produced no evidence upon that point.
    
      Nov. 8th 1837.
    
      Rantoul and Cushing, for the defendant,
    contended in relation to the first five exceptions, that the offence created by Revised Stat. c. 47, § 3, consists in a series of acts by which the offender acquires the character of a seller or retailer, and therefore a series of acts must be averred, or must at least be proved ; but if the offence consists in a single act of sale, then it should be set forth in the indictment, with time, place and person. 2 Hawk. P. C. c. 25, § 59 ; Commonwealth v. Pray, 13 Pick. 362 ; Commonwealth v. Davis, 11 Pick. 432. On the point, that the burden of proof was on the government to show that the defendant was not licensed, they cited Chitty’s Crim. Law, 556 ; 1 Phil. Ev. (6th ed.) 184 ; Rex v. Rogers, 2 Campb. 654 ; Rex v. Hazy, 2 Carr. & Payne, 458.
    
      Austin, Attorney-General, for the Commonwealth,
    cited in regard to the form of the counts, St. 1786, c. 68, § 1 ; Revised Stat. c. 47, §1,2,3; Commonwealth v. Eaton, 9 Pick. 165 ; and to the point, that the fact of having a license was matter of defence to be proved by the defendant, Rex v. Smith, 3 Burr. 1475 ; The King v. Turner, 5 Maule & Selw. 209 ; The Apothecaries Company v. Bentley, 1 Ryan & Moody, 159 ; Commonwealth v. Samuel, 2 Pick. 103 ; Geuing v. The State, 1 M‘Cord, 573.
   Shaw C. J.

afterward drew up the opinion of the Court. Several of the exceptions taken in the present case, both to the decision of the judge who tried the cause, and in the nature of a motion in arrest of judgment, depend on the decision of one question, on the construction of the statute. It arises upon the first exception, for that in each of said counts the attorney for the Commonwealth offered evidence of only one act of sale, and though objected to, the court ruled that one such act of sale constituted an offence. The question js, whether this is the true construction of the act.

This indictment is founded on the Revised Statutes, c. 47, § 3. No person shall presume to be a retailer or seller of wine, brandy, rum or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless licensed, &c. under penalty of $ 20.

On the one hand, it is contended that this- was not designed to inhibit and punish any single act of selling, but to prevent and punish the trade, occupation and employment of keeping a grog-shop, and being an habitual and common seller, and therefore, that a single act of selling, without other evidence of doing it as a trade, or habitual occupation, does not constitute the offence, and proof of it will not sustain the indictment.

On the other hand, it is insisted, that as the act does not in terms include in its description, common seller or common retailer, every man must be a seller or retailer, who sells or retails ; that being contrary to law, it is a presumptuous act ; and that each act of selling without license, is a violation of the true meaning of the law ; and that upon any other construe tbn the law would be nearly a dead letter. The great difficulty is, in ascertaining the meaning of the legislature in the use of language so unusual in legal enactments, and so destitute of exactness and precision. The meaning is to be ascertained, if practicable, from all the other provisions of the statute on the same subject, from previous acts in pari materia, and from judicial constructions of those acts, if any have been had.

No question arises here upon that part of the statute, which prohibits unlicensed persons from selling spirit to be used on their premises ; all the counts in this indictment simply charge the selling by retail, without license. The question, therefore, turns solely on the third section respecting selling by retail. That clause in the Revised Statutes is taken from St. 1832, c. 166, § 2, with some unimportant variations, one of which is, substituting 28 gallons instead of 10 gallons. The statute of 1832 was itself a revision, with considerable alterations, of the old St. 1786, c. 68, to which therefore it is proper to refer. That statute, in the first section, unites taverners and retailers all together and provides that no person may presume to be a common victualler, innholder, taverner, or seller of wine, beer, ale, cider, brandy, rum, or any strong liquors, by retail, or in a less quantity than 28 gallons, and that delivered, &c. except he be first duly licensed, &c. on penalty of £ 20 ; and in another part of the same section it enacts, that if any person shall at any time sell any spirituous liquor, &c. without license, he shall forfeit a sum not exceeding £ 6, nor less than 40 shillings. Many of these provisions were taken from still earlier enactments, to which, however, it may not be necessary to refer.

By this statute of 1786 it is manifest that two distinct offences were created, and under very different penalties ; one, that of being a common victualler, or seller, that is, common seller, by retail, and this included as well beer, ale, and cider, as wine, rum, and brandy ; the other, the specific offence of selling spirituous liquor. The term “presume” in this act is applied only to the offence of being a common taverner, or seller by retail, and is not used in reference to the specific act of selling spirituous or mixed liquors. The term originally got into use probably in this way ; keeping a house of entertainment without license was prohibited and made penal by law, but the law was disobeyed. New and additional means and penalties were requisite for enforcing the law, in which the offenders were denounced as persons presuming to violate known and salutary laws already in existence. The word has been retained in provisions in which it has no proper application, and, by its want of meaning, it has tended to throw some obscurity over them.

In comparing the statute of 1832 with the one last cited, it is manifest that there is a marked difference in this respect; the earlier statute made two distinct offences, that of presuming to be a seller or common seller of either beer and ale, or rum and other spirits, under a large penalty of $ 66-66, and another, that of a single act of selling spirit, under a very moderate penalty, not less than $ 6-66 nor more than $ 20 ; but the later statute makes but one, and that under a penalty of $ 20. The two statutes are distinguishable in another respect; the earlier one unites taverners and retailers together in the same sentence, apparently applying the word “ common ” to them all; the later separates the two classes as to the mode of obtaining licenses, and as to the penalties, and does not in terms, or by any implication, apply the word “ common ” to retailers and sellers.

Of the two offences of the former statute, which did the latter intend to drop ? The penalty is the same which was before applied to the offence of selling. On the whole view of the subject, the Court are of opinion, that under this form of expression the legislature intend to prohibit every act of selling spirituous liquors, and that this construction will best reconcile all the provisions of the statute, and best promote the apparent intent of it. The meaning in any view is not very apparent; but considering that the words will admit of this construction, that it was intended to abolish one of the offences under the old statute, with the penalties annexed to it, and retain the other, that the trade of being a common taverner or victualler is separately provided for in another part of the statute, under a distinct penalty, but that the act of selling spirit, which had long been punishable, is not prohibited in any othet part of the act, we are led to the conclusion, that in the last act, the legislature intended to reenact the law against selling spirit by retail, which may be accomplished by a single act of sale, and to annex the smaller penalty of the former statute to this offence. We think such has been the construction put upon this statute ever since its enactment; such was the construction put upon it at the trial of this cause in the court below, and we think it was the correct and true construction.

The view thus taken by the Court upon the point of construction, disposes of several of the other exceptions, founded upon the suggestion, that only one act of selling spirit was charged or proved.

And the Court are also of opinion, that this decision upon the subject of construction, draws after it another conclusion, which is, that as the offence consists not in sustaining a particular character, or habitually and usually pursuing a course of dealing, but in doing a specific act, the indictment must charge the doing of that act, with the usual precision and certainty requisite in other cases, so that it may be traversed, put in issue and tried. It is not sufficient to follow the words of the statute, and aver that the defendant was a retailer and seller, but it must go further, and aver that at a time and place stated, he did sell to some person named, or to a person un known, as the case may be. As the 12th, 13th and 14th counts do not conform to these requirements, we think that they are defective, and the verdict rendered upon them cannot be sustained.

But the 5th count seems not to be open to this objection. It avers that at a time and place named, the defendant did presume to be, and was a retailer and seller of spirituous liquors, &c. and did then and there sell and retail, to one Michael Floyd &c. Had the existing statute, like the former one, made two distinct offences, with different penalties, one, that of being a seller of beer, ale, rum, &c. and the other, of selling spirituous liquor, this indictment might have been open to another exception, that of charging two different offences in one count, leaving the Court in doubt, in case of conviction, what judgment to give. But as the whole describes but one offence, the former part in the general words used by the statute, and the latter by way of more exact specification, required by the rules of law, there is no such ambiguity or doubt.

The last exception necessary to be considered is, that the court ruled that the prosecutor need give no evidence in support of the negative averment, that the defendant was not duly licensed, thereby throwing on him the burden of proving that he was licensed, if he intends to rely on that fact by way of defence.

The Court entertain no doubt, that it is necessary to aver in the indictment, as a substantive part of the charge, that the defendant, at the time of selling, was not duly licensed. How far and whether under various circumstances, it is necessary to prove such negative averment, is a question of great difficulty, upon which there are conflicting authorities. Cases may be suggested of great difficulty on either side of the general question.. Suppose under the English game laws, an unqualified person, prosecuted for shooting game without the license of the lord of the manor, and after the alleged offence and before the trial, the lord dies, and no proof of license, which may have been by parol, can be given ? Shall, he be convicted for want of such affirmative proof, or shall the prosecution fail for want of proof to negative it ? Again, suppose under the law of this Commonwealth it were made penal for any person to sell goods as a.hawker and pedler, without a license from the selectmen of some town in the Commonwealth. Suppose one prosecuted for the penalty, and the indictment, as here, contains the negative averment, that he was not duly licensed. To support this negative averment, the selectmen' of more than three hundred towns must be called. It may be said, that the difficulty of obtaining proof is not to supersede the necessity of it, and enable a party having the burden, to succeed without proof. This is true ; but when the proceeding is upon statute, an extreme difficulty of obtaining proof on one side, amounting nearly to impracticability, and great facility of furnishing it on the other, if it exists, leads to a strong inference, that such course was not intended by the legislature to be required. It would no doubt be competent for the legislature, so to frame a statute provision, as to hold a party liab’e to the penalty, who should not produce a license.

Besides, the common law rules of evidence are founded upon good sense and experience, and adapted to practical use, and ought to be so applied as to accomplish the purposes for which they were framed.

But the Court have not thought it necessary to decide the general question ; cases may be affected by special circumstances, giving rise to distinctions applicable to them to be considered as they arise.

In the present case, the Court are of opinion that the prosecutor was bound to produce prima facie evidence, that'the defendant was hot licensed, and that no evidence of that averment having been given, the verdict ought to be set aside. The general rule is, that all the averments necessary to constitute the substantive offence, must be proved. If there is any exception, it is from necessity, or that great difficulty, amounting, practically, to such necessity ; or in other words, where one party could not show the negative, and where the other could with perfect ease show the affirmative. But if a party is licensed as a retailer under the statutes of the Commonwealth, it must have been done by the county commissioners for the county where the cause is tried, and within one year next previous to the alleged offence. The county commissioners have a clerk and are required by law to keep a record, or memorandum in writing, of their acts, including the granting of licenses. This proof is equally accessible to both parties, the negative averment can be proved with great facility, and therefore, in conformity to the general rule, the prosecutor ought to produce it, before he is entitled to ask a jury to convict the party accused.

Verdict set aside and a new trial granted.  