
    Commonwealth vs. Henry S. Coolidge.
    Norfolk.
    Nov. 24.
    Dec. 1, 1884.
    Field, C. Allen, & Colburn, JJ., absent.
    At the trial of a complaint for keeping 'and maintaining a common nuisance, the evidence for the government tended to show that two persons went into an apothecary shop kept by the defendant, and asked him for soda; that he asked them what syrup they would have, and one of them said, “Whiskey;” and that the defendant then delivered to them two drinks of soda and whiskey, for which one of them paid. Held, that it could not be said, as matter of law, that there was not sufficient evidence to warrant a verdict of guilty.
    Complaint to the District Court of East Norfolk, for keeping and maintaining a common nuisance, to wit, a certain tenement in Holbrook used for the illegal sale and illegal keeping of intoxicating liquors, on July 1, 1883, and on divers other days and times between that day and April 26, 1884.
    At the trial in the Superior Court, before Staples J., the government offered evidence tending to show that one Delano and one McNiell went into an apothecary shop kept by the defendant in Holbrook, on July 4, 1883, and asked the defendant for soda; that the defendant asked them what syrup they would have, and Delano said, “ Whiskey; ” and that the defendant then delivered to them two drinks of soda and whiskey, for which Delano paid. This was all the evidence offered; and the defendant asked the judge to rule that it was not sufficient to warrant a conviction. But the judge declined to rule as requested, and submitted the case to the jury under instructions not excepted to.
    The jury returned a verdict of guilty; and the defendant alleged exceptions.
    
      J. L. Eldridge, for the defendant.
    
      H. N. Shepard, Assistant Attorney General, for the Commonwealth.
   By the Court.

It cannot be held, as matter of law, that there was not sufficient evidence in this case to justify the verdict of the jury. While a single sale of intoxicating liquor might not be sufficient evidence to prove that the defendant kept a nuisance under the statute, yet the sale may be made under such circumstances as to indicate that it was made in the course of the defendant’s usual business. In this case, it was proved that the defendant kept an apothecary shop, and sold whiskey therein to one Delano; it was for the jury to say whether, from the circumstances of the sale, from the manner in which Delano and his companion called for the whiskey, and from the readiness with which the defendant supplied it, without any hesitation or question, it was fairly to be inferred that he was in the habit of selling intoxicating liquor in his shop.

Exceptions overruled.  