Indictment in two counts, the first alleging that the defendant, at Worcester, “did assist in keeping and maintaining a certain tenement and place there situate then and at the times aforesaid, and there used by the Pelican Club for the purpose of illegal selling, distributing, and disposing of intoxicating liquors,” from May 2, 1890, to August 11, 1890 ; and the second, that the defendant, at the same time and place, did keep and maintain a common nuisance, to wit, a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors.

In the Superior Court, before the jury were impanelled, the defendant moved to quash the indictment, on the ground that two counts, describing different offences depending on the same facts were set forth therein, and that the indictment did not contain an averment that the different counts were descriptions of the same act. Dunbar, J. overruled the motion; and the defendant excepted.

At the trial, certain police officers of the city of Worcester testified on behalf of the government, in substance as follows.

The rooms of the Pelican Club were in a building numbered 98 Front Street, in that city. On the afternoon of August 2, 1890, the officers knocked at the door of the front room, and the defendant admitted them. The room was fifteen by eighteen feet, and contained five or six small tables, eighteen chairs, a small writing-desk, a few pictures on the walls, a piano, and four books. There were seven men sitting at tables, four or five of them drinking beer. There was no beer in the rooms except what the men were drinking. In the rear of this room was a small room with a large refrigerator, six feet high by-four feet broad, with nothing in it but ice. On another side of the room were twenty-five small closets, or lockers, about fifteen inches deep, the doors of which were twelve or fourteen inches square. There were a sideboard and a table on which were twenty tumblers, twenty-four beer glasses, twelve small whiskey glasses, a sugar-bowl with sugar shaker, lemons, corkscrew, and under the table were a large tub to wash glasses in, and two pails, one partially filled with water, and in it some lemon peel and slices of lemon. The defendant was asked who had charge of the place, but made no reply. Upon being asked a second time, he replied that he did not know as he ought to tell. The defendant was then asked, “Do you run it?” and he answered, “ I suppose I do, I stay here.” The defendant unlocked the drawers in the sideboard in which were the keys for the lockers; one key unlocked several lockers, and a few opened all the lockers. A few had something in them; none had anything except liquor; there were whiskey, gin, beer, and empty bottles. Many of the lockers had nothing in them. One Cronin, who was present at the time, had been seen by one of the officers ah another club within half an hour.

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