The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-01-21
THE COSTELLO CASE.
The Warrant Dismissed by Judge
Gould.

j. II. Costello of Boston was arrested as
stated Tuesday on a charge of obtaining
orders for liquor from persons in this city.
The complaint was under section 80 of chap
ter 81 of the Revised Statutes, and is punish
able by fine of from $50 to $500 ''for each
offer to take an order, and for each order
taken and sale so made, one-half to the COM
plainant and one-half to the county in which
the offense is committed" Yesterday morn
ing Costello was before the Municipal Court
The complaint made by General Neal Dow
before the Recorder Of the Court, alleged
that j. H. Costello, whose Christian name is
unknown did on the 18th of January travel
from place to place in Portland offering to
obtain orders for the sale of intoxicating and
fermented liquors and did offer to a certain
person unknown to take an order for the
sale of intoxicating and fermented liquor.
Hon. c. f. Libby appeared for Costello.
Peter E. Deehan, who stated he was a
druggist doing business in Portland, was
called by the government. The Assistant
County Attorney was proceeding to inquire
of Mr.. Deehan whether at any time during
the year 1885 the respondent had solicited
any orders from him, when Mr.. Libby oD-
jected to the inquiry and claimed 1t shoulo
be limited to the time of the offer set forth III
the complaint, and that the evidence even
then would not sustain the prosecution,
as the allegations in the complaint were de-
fectiye and insufficient to apprise the
respondent of the offence he was called
upon to meet. He contended that the
first part of the complaint which
alleged travelling from place to place offer
ing to take orders for the sale OF intoxicat-
ing LIQUORS. but making no allegation as to
the number of offers made or the particu-
lars relating to same, was not sufficiently
full or precise to sustain a prosecution, as
each offer constituted separate offense and
the penalty was annexed to each separate
offer made OF order taken; that the latter
part of the complaint was equally insuffic-
lent as it did not attempt to state the cir
cumstances constituting the offense and was
entirely lacking in the fullness of statement
required in criminal prosecutions. 1t stated
an offer TO sell to some party unknown, but
did not state in whose behalf the offer was
made or the quantity of liquors covered by
the offer. Mr.. Libby cited authorities to
show the complaint was defective, as it did
not disclose the elements necessary for the
court to judge of the Nervousness of the Of
Tense SO as to determine whether a fine of
$50, the minimum, or $500, the maximum,
should be imposed; nor would the record
protect, in case of acquittal or conviction,
the respondent from subsequent prosecu-
ton for the same offense. The iparticularity
required in prosecutions under the statute is
shown in case of State vs. Smith, 81 Me. 425,
and that this warrant was defective in all
the elements of the offense therein set forth
He therefore moved that the warrant be dis
missed as not setting forth any offense under
the statute.
Assistant County Attorney Libby appear
ed for the State. He claimed that it was not
necessary to allege the name of the person
any more definitely than to describe him as
person unknown. He said that the allega-
ton of Intoxicating and fermented liquors
was specific enough, and that it was unnec-
essary to allege the amount of the order
taken. He said that under the allegation
that ON the 18th of January an offer was
made, evidence was admissible of an offer
made on any other particular day.
The judge asked if the attorney for the
State would maintain that evidence admitted
in this case and a conviction on said evidence
a sale ON the LIST of January, for instance,
would be bar to a subsequent complaint by
another complainant for the same otfense
1t was admitted that it would not be.
The judge then said that if a conviction or
acquittal under this complaint would not be
a bar to a subsequent prosecution for the
same offense, the complaint could not be
good. That as the fine was for each offer,
not for all offers within given time, con-
viction or aequittal must be a bar to one spe
cific offer or to all offers, prior to the date of
the warrant. The complaint must set forth
one or more offers, with sufficient certainty
to identify them. The warrant was there
fore dismissed.
There has been prosecution for the same
offense, which is reported in the 9th Maine
Reports. In that case the offense is set
forth with the particularly asked for by the
counsel for the respondent.