Commonwealth vs. Rodolphus C. Edwards & another, 12 Cush. 187

Shaw, C. J. This prosecution, for a violation of the liquor law, was commenced before William N. Green, Esq., justice of the police court for the city of Worcester. After a conviction in the police court, an appeal was taken to the court of common pleas, where the defendants, being again convicted by a verdict, moved in arrest of judgment, which motion was overruled. To this decision the defendants took exceptions to this court. 1. The first exception is, that the judge of the police court, before whom the complaint was made, was interested, because, if the judgment should be recovered, it would, by the 8th

section of St. 1852, c. 322, enure to the use of the town or city where the convicted party resides. The court are of opinion that even if such an interest would disqualify a judge, to whom jurisdiction is given by statute, there is no sufficient ground apparent on this record, on which to raise the objection. There is nothing to show that the justice was a tax-paying inhabitant of the city of Worcester, or that the parties complained against resided in the city of Worcester.

No objection was made to the jurisdiction of the police court, in that court; and none was made in the court of common pleas, until after a trial and verdict. This exception, therefore, is not sustained. 2. It was objected to this complaint, that it does not allege that the liquors kept and intended for sale, were not imported liquors, in original packages, nor that they were intended for sale in this commonwealth. We are of opinion that the first part of this objection is answered by the statute itself. By a clause in

section 14, the liquors are declared forfeited, and the party keeping them for sale is charged with the penalty, “ unless be can prove that said liquors are of foreign production, that they have been imported under the laws of the United States, and in accordance therewith, that they are contained in the original packages, in which they were imported, and in quantities not less than the laws of the United States prescribe, or are kept for sale by authority derived under this act, or are otherwise lawfully kept,” &c.

The law expressly makes this matter of defence, and places the burden of proof on the defendant, to prove these facts, if he can. This, of course, exonerates the prosecutor from negativing in his averments, such facts as, if they exist, are mere matter of defence. Commonwealth v. Hart, 11 Cush. 130. In regard to the latter part of this exception, it is sufficient, we think, to allege generally, that the liquors were kept for sale, without alleging that they were intended for sale in this commonwealth. It is strictly analogous to the case of lottery tickets, kept for sale, which was fully considered and decided.

Commonwealth v. Dama, 2 Met. 329. 3. It was objected, that the complaint does not aver that the liquors kept and intended to be sold, were not cider nor wine kept for special purposes, which were authorized and excepted by the statute. But this is matter of exception, not part of the description of the offence, but matter of defence, and, therefore, need not be negatived. This was decided in Commonwealth v. Heart, already cited. Exceptions overruled,