Complaint to the District Court of East Norfolk, on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining on January 1, 1878, and on divers other days between that day and July 22, 1878, a certain tenement in Weymouth, used for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance.

At the trial in the Superior Court, before Brigham, C. J., there was evidence tending to show that intoxicating liquor was kept and sold by the defendant, from January 1, 1878, to the middle of June, 1878, in one tenement, and from that time to July 22, 1878, in another tenement, which was separate and distinct from the first, and to which the defendant removed about the middle of June. The defendant contended that he could not be convicted; that the government must at least elect as to which tenement it would rely upon, if there could be an election; and that there could be no election, the offence being charged as a continuing offence; and asked the judge so to rule. But the judge ruled that the government could elect; and the government thereupon elected to rely upon evidence relating to the second tenement.

The only evidence introduced after this election related solely to the keeping of the second tenement. There was some evidence that testimony was given in the District Court as to the defendant’s keeping the first tenement as well as the second; and that no witness there testified that the defendant removed from the first tenement by the middle of June, or occupied more than one tenement from January 1 to July 22.

The defendant asked the judge to rule as follows: “ 1. There can be no conviction on the complaint. 2. The defendant can only be tried and convicted in the Superior Court for the keeping of the same tenement for the keeping of which he was tried and convicted in the District Court. 3. The defendant can only be tried in the Superior Court for keeping that tenement which the complainant had in his mind when he made the complaint. 4. While the presumption is that the defendant is on trial for the same offence, the allegation in the complaint from January 1, 1878, to July 22, 1878, is competent evidence for the juiy to consider in deciding whether the defendant was being tried for the same offence of which he was convicted in the District Court.”

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