¶11. We are of opinion that the defendant has no legal cause of complaint that his trial before the magistrate was conducted, on behalf of the Commonwealth, by an attorney for whose services the defendant, on final conviction, may be compelled to pay ten dollars. The expediency and justice of the statute provision in this matter are for the consideration of the legislature. The earnest argument of the defendant’s counsel has not convinced us that the provision is unconstitutional.
¶22. We are also of opinion that the jury were rightly instructed that Perry’s testimony might be considered by them in corroboration of the other evidence, even if not sufficient to prove a *364sale by the defendant to Perry. Commonwealth v. Burnham, ante, 101.
¶33. A defendant cannot legally be convicted of being a common seller of intoxicating liquors, unless it be proved that he has made at least three distinct sales thereof. Commonwealth v. Tubbs, 1 Cush. 2. But we are of opinion that the jury, under the instructions given to them, may have found the defendant guilty, though they may not have been satisfied that ne had made three distinct sales during the time mentioned in the complaint; especially as they were not instructed that proof of three sales at least was necessary to a conviction. They may have found him guilty, we think, on evidence which was held, in Commonwealth v. Tubbs, not to warrant such a finding. The jury were instructed, among other things, as follows : That if, by the whole evidence in the case, they were satisfied that the defendant was, during the period covered by the complaint, in the occupation of a common seller of spirituous and intoxicating liquors, they would be authorized to find him guilty, whether the three several sales, to which Taylor had testified, were proved or not. This instruction, in our opinion, was too indefinite. It did not present to the jurors’ minds an exact statement of what was necessary to constitute a common seller, namely, at least three distinct sales. The defendant is therefore entitled to a new trial. Exceptions sustained.