v.
John Holmes
When one count in an indictnlent charges two offences, distinct in kind and requiring distinct punishments, the objection of duplicity has been allowed in arrest of judgment. Commonwealth v. Symonds, 2 Mass. 163. State v. Nelson, 8 N. H. 163. People v. Wright, 9 Wend. 193. But when the two offences are precisely alike, the only reason against joining them in one count is that it subjects the accused to confusion and embarrassment in his defence; the objection is not open after a verdict of guilty of one offence only, but must be taken by mo-' tian to quash, or to compel the prosecutor to confine himself ta one of the charges; and the fault is cured by his electing to pro[*199] ceed upon one charge only, and entering a nolle prosequi as to. the others. Commonwealth v. Tuck, 20 Pick. 356, 361, 362. Commonwealth v. Cain, 102 Mass. 487. State v. Merrill, 44 N. H. 624.
The appeal from the judgment of the District Court vacated that judgment, and rendered immaterial the overruling of the motion to quash in that court and all other errors and irregularities in the proceedings there. Commonwealth v. Harvey, 111 Mass. 420. Commonwealth v. Calhane, 108 Mass. 431. Commonwealth v. Sheehan, 108 Mass. 432 note. In the Superior Court, the district attorney entered a nolle prosequi as to all the offences charged, except the sale to White, and the defendant was tried for that offence only. The presumption, in the absence of evidence to the contrary, is that his conviction in the District Court was for the same offence. Commonwealth v. Fields, ante, 105, and cases cited.
The evidence that the defendant’s son sold intoxicating liquors to White in a public house kept by the defendant, and in which his son was clerk, was sufficient evidence to be submitted to the jury of a sale by the defendant through his son as his agent, and to warrant a conviction. Exceptions overruled.