The jury were only told that it would be competent for them to find the defendant guilty in the first degree, upon proof of the facts stated; it was wholly left to them to find whether the facts stated were proved, and, if proved, whether they amounted to that extreme atrocity and cruelty which the statute requires, and which calls for the highest degree of punishment.

The crime of murder always implies atrocity and cruelty in the guilty party; but there are degrees of criminality in that respect, even in the felonious and malicious taking of human life; and, in order to justify a finding of murder in the first degree, it requires that something more than the ordinary incidents of the crime shall exist --something implying more than ordinary criminality, and manifesting a degree of atrocity or cruelty which must be considered as peculiar and extreme. The nature of the question is such that it must be largely left to the determination of the jury; and, when there is sufficient evidence to justify it, their finding must be conclusive.

In the case at bar, the jury were required by the instructions to be satisfied that the death was caused by stamping and jumping upon the person of a prostrate woman, and by blows and kicks inflicted with great violence, and repeated during the afternoon and evening, from which, after prolonged agony, she finally died. There can be no doubt that this presents a case of savage, unfeeling, and long continued brutality of purpose, which fully justified the jury in finding the defendant guilty of extreme atrocity and cruelty. Within the reasonable interpretation of the statute, such cruelty must be considered extreme, although it be possible to devise means of producing death which shall manifest a higher degree of criminality. It is enough if the means used were extreme as compared with ordinary means of producing death. Commonwealth v. Desmarteau, 16 Gray, 1.

Exceptions overruled.

COMMONWEALTH vs. ALBERT W. WORCESTRR.

Middlesex. January 1.—31, 1879. COLT & ENDICOTT, JJ., absent.

A complaint on the Gen. Sts. c. 87, § 6, charging the defendant with keeping and maintaining a tenement used for the illegal sale and illegal keeping of intox icating liquors, is sustained by proof that the defendant furnished intoxicating liquors with meals supplied to customers, the payment for which included pay. ment for the liquors.

COMPLAINT on the Gen. Sts. c. 87, § 6, charging the defendant with keeping and maintaining a certain dwelling-house in Concord, 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 Allen, J., the government called witnesses who testified that they went to the defendant's dwelling-house on two or three different occasions and had dinners or suppers; that with these meals, and as part thereof, they had wine, lager beer and other liquors; and that when they got through they paid the defendant for the meal, each paying what he pleased, and they thought they paid two dollars each. The evidence did not show that there was any bar there, but that the table was spread, and they had chowder, beef, chickens, &c., and the wine and beer bottles were on the table.

The defendant asked the judge to instruct the jury as follows: "If the jury find upon the evidence that the defendant kept the house described in the complaint as his dwelling-house, and that occasionally parties of young men resorted there for meals of victuals only, that would not constitute such house a nuisance within the meaning of the law, although the defendant furnished with such meals wine or other intoxicating liquors, if the parties simply paid for the meals so furnished, and no bar for the sale of liquor was kept on the premises, and no liquor was sold or furnished except as aforesaid with the meals."

The judge declined to give the instruction requested, but instructed the jury that, if meals were furnished, and, as part of such meals, intoxicating liquors were furnished, and the payment for the meals included payment for the liquors, that

would constitute an illegal sale within the provisions of the statute.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

I. S. Morse, for the defendant.

J. F. Brown, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth.

AMES, J. The instructions given by the presiding judge were correct. The purchase of a meal includes all the articles that go to make up the meal. It is wholly immaterial that no specific price is attached to those articles separately. If the meal included intoxicating liquors, the purchase of the meal would be a purchase of the liquors. It would be immaterial that other articles were included in the purchase, and all were charged in one collective price. If a dealer should undertake to present a glass of liquor to everybody who should purchase some small article of him, it would be considered a mere evasion of the law prohibiting the unlicensed sale of intoxicating liquors. As to the instruction which the court was requested to give, if its natural import was not that there was no sale of liquors in this case, if they were furnished as incident to and a part of the meal, and thus paid for, it was at least equivocal, and liable to be so understood by the jury. The judge, therefore, was not bound to give it in the language suggested to him. The instruction which he did give was correct, and contained all that the defendant was entitled to upon that subject.

Exceptions overruled.

VOL. XII.

17

COMMONWEALTH vs. JOHN MCCORMACK.

Norfolk. Nov. 25, 1878.-Jan. 1, 1879. COLT & MORTON, JJ., absent.

The omission of the record in a criminal case to show a joinder in a demurrer to an indictment is immaterial, and cannot be objected to after the trial and determination of the issue tendered by the defendant.

If the defendant in a criminal case, after a demurrer to the indictment against him has been overruled, has pleaded over and been found guilty, the case is ripe for final judgment and sentence, and he can then bring the questions of law ruled against him to this court by appeal, without such sentence having been actually awarded.

GRAY, C. J. The defendant, having been indicted in the Superior Court for selling intoxicating liquor without any legal authority or license therefor, demurred to the indictment, specially assigning the grounds of demurrer. The record shows that the demurrer was overruled by the court, the defendant pleaded the general issue, and was tried thereon and found guilty, and then appealed to this court from the judgment against him upon the demurrer.

The only point argued for the defendant is that he is entitled to judgment, because the record does not show that the Commonwealth joined issue on the demurrer. But the omission of the record to show this, like its omission to show a joinder of issue on the plea of not guilty, is wholly immaterial to the rights of the defendant, and cannot be objected to after the trial and determination of the issue of law or fact tendered by him. 1 Chit. Crim. Law, 481, 482. United States v. Gibert, 2 Sumner, 19,

66.

Commonwealth v. McKenna, 125 Mass. 397. The attorney general contends that the appeal should be dismissed, because there has been no final disposition of the case in the Superior Court. If the record showed nothing beyond the overruling of the demurrer, that would be so, because it would have been within the discretion of the court below to allow the defendant to answer over, and therefore the case would not appear upon the record to have been wholly and finally disposed of in that court. Commonwealth v. Paulus, 11 Gray, 305. Commonwealth v. Gloucester, 110 Mass. 491. But, after the defendant had pleaded over and been found guilty, all questions of law and fact appeared on the record to have been disposed of, so that the case was ripe

for final judgment and sentence, and the defendant might then bring the questions of law ruled against him to this court by ap peal or exceptions, without such sentence having been actually awarded. Gen. Sts. c. 114, § 10; c. 115, §§ 7-10. Case v. Ladd, 2 Allen, 130. Gifford v. Rockett, 119 Mass. 71. Kellogg v. Kimball, 122 Mass. 163. Platt v. Justices of Superior Court, 124 Mass. 353. Commonwealth v. Spilman, 124 Mass. 327. The decision in Commonwealth v. Hanley, 121 Mass. 377, by which the court, after holding a motion to quash to have been rightly overruled because the complaint was sufficient, rendered judg ment in the form of dismissing the appeal, instead of affirming the judgment below, overlooked the fact that, after the overruling of the motion to quash, the defendant had been tried and found guilty by the jury. Judgment affirmed.

J. W. Pickering, for the defendant.

C. R. Train, Attorney General, & J. F. Brown, Assistant At torney General, for the Commonwealth.

COMMONWEALTH v8. JOHN ROBINSON.

Norfolk. November 27, 1878.-January 18, 1879.

An acquittal on a complaint for keeping and maintaining a tenement for the illegal sale and illegal keeping of intoxicating liquors from January 1 to May 28, is a bar to a complaint for keeping the same tenement for the same purpose from January 1 to August 20 of the same year.

LORD, J. The bill of exceptions in this case presents some questions of certainly unusual, if not entirely novel character.

The complaint made to a District Court charges the defendant with keeping a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors at Braintree, on January 1, 1878, and on divers other days and times between that day and August 20, 1878.

The bill of exceptions states that "in the Superior Court, the case being called for trial, the defendant having duly filed a plea in bar alleging a former acquittal of the same offence, and issue having been joined thereon, the government demurring ore tenus,