KFM Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A, M, B0ARD1V(AN ani] BLtBN D. WI(,UA1VIS 806 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024685806 OEIMINAL LA"W AS ADMINISTERED IN MASSACHUSETTS. BT FRANCIS J. LIPPITT, OF THE UNITED STATES DEPAKTMEHT OF JUSTICE. BOSTON: HOUGHTON, OSGOOD AND COMPANY. 1879. COPTEIGHT, 1879, By FRANCIS J. LIPPITT. niTERSIDB, CAMBRIDGE, PKINIED Br II. 0. HOUGHTON AND COMPANY. NOTICE. This work contains, under appropriate heads, the sub- stance of all decisions relating to Criminal Law, Pleading, Evidence, and Procedure, recorded in the first one hundred and twenty-three volumes of the Massachusetts Reports. The Author's comments are distinguished from the author- itative portion of the text by being placed in parentheses. TABLE OF CONTENTS. PART FIEST. OP CEIMINAL PLEADING IN GENERAL. CHAPTER I. OF THE INDICTMENT. SECTION It must set forth all the Essential Elements of the Offence . . .1 It must leave no Element of it to be supplied by Inference . 2 But if the Eacts set forth clearly show the Commission of an Offence, this is usually sufficient 3 Eacts not directly averred may be supplied by legal Intendment or necessary Implication 4 Certainty 5 Particularity 6 Limitations of the Rule 7 As to Facts not essential 8 Facts immaterial to Defendant ....... 9 Nature of the Offence 10 When greater Particularity not practicable 11 Miscellaneous Points 12 A Charge of a, statutory Offence should follow the Language of the Statute . . . . ■ 13 Limitations of the Rule 14 The Indictment must negative all the Exceptions contained in the Enacting Clause 15 Averments required in Reference to the Penalty imposed . . 16 The Indictment need not negative what are properly Matters of De- fence 17 Facts must be stated according to their legal Effect . . . .18 The Rule modified by Statute 19 A Criminal Knowledge or Intent need not be averred as to mala pro- hibita 20 VI TABLE OF CONTENTS. SECTION Written or Printed Matter 21 Allegations of Time 22 The Rule qualified 23 Continuing Offences 24 Limitation of the Kule ........ 25 Allegations of Place 26 Allegations of Value 27 Allegations of Number 28 Fofmal Words 29 Contra Formam Statuti . . . . . . . . .30 Construction of certain Terms 31 Complaint . . . , 32 CHAPTER n. DESCRIPTION OF THE OFFENCE. The Description must be sufficiently particular to subserve Three Ob- jects *■ 33 Limitations of the Rule 34 If the Description is as precise as is practicable, it is sufficient . 35 Particulars not material to the Ofience 36 Statutory Description 87 Names 38 Descriptive Allegations 39 Exceptions to the Rule 40 CHAPTER m. DUPLICITY. What it is 41 When the Objection is available 42 Several Acts may be charged in one Count 43 No Duplicity where, substantially, but one Offence is charged . . 44 Nor where the Offence may consist of all or either of the Acts charged 45 Matter that js mere Surplusage will not cause Duplicity ... 46 No Duplicity arises from the mere Form of the Pleading . . .47 Indictment for Burglary an Exception to the Rule as to Duplicity . 48 CHAPTER IV. SURPLUSAGE. What is Surplusage 49 Synonymous Phrases 50 After Conviction 51 TABLE OF CONTENTS. '^ll CHAPTER V. JOINDEK OF COUNTS. SECnOH When permitted 52 Statute of 1861, c. 181 53 Misjoinder of Counts 54 CHAPTER VI. JOINDER OF DEFENDANTS. Defendants jointly liable for any Offence committed by them jointly . 55 Consequences of Joinder 56 CHAPTER VII. ARRAIGNMENT AND PLEAS. The Arraignment 57 Refusing to plead 58 Pleas 59 Pleas in Bar 60 Guilty and not Guilty 61 Nolo contendere 62 Misnomer 63 CHAPTER VIII. PLEA OF FORMER JUDGMENT. Autrefois conviqt 64 One may be punished more than once for the same Act ... 65 A previous Conviction no Bar when procured by the Defendant him- self 66 Autrefois acquit 67 Where the Court had no Jurisdiction of the Offence . . .68 When these Pleas not sustainable 69 Conviction by Justices of the Peace . . 1 . . . .70 Form of the Plea 71 Procedure 72 VUl TABLE OP CONTENTS. PART SECOND. OF CRIMINAL EVIDENCE IN GENERAL. CHAPTER I. GENERAL CONDUCT OP THE TRIAL IN RESPECT TO THE EVIDENCE. SECTION Certain Matters depend upon the Discretion o£ the Judge . . .73 When an Appeal lies from the Judge's Ruling 74 Miscellaneous Points -75 CHAPTER n. OF WITNESSES. Competency . .......... 76 Husband and Wife '. . 77 Religious Belief 78 Competency in other Cases 79 Credibility . . 80 CHAPTER III. EXAMINATION OF WITNESSES. Contradiction of Witnesses 81 Impeachment of Witnesses 82 Cross-examination .......... 88 Rights of Witnesses 84 Miscellaneous Points 85 CHAPTER IV. WHAT EVIDENCE IS ADMISSIBLE. Oral Evidence 86 Letters 87 Witnesses' Opinions 88 Defendant's Declarations 89 Evidence in Rebuttal 90 Evidence of other Offences 91 Corroborative Evidence 92 Testimony of a Deceased Witness 93 V TABLE OF CONTENTS. IX SECTION What is not admissible' 94 Hearsay 95 Miscellaneous Instances of Admissible Evidence .... 96 CHAPTER V. WHAT EVIDENCE IS SUFFICIENT. PRESUMPTIONS. Generally 97 Special Rulings 98 Presumptions 99 CHAPTER VI. JUDICIAL QUESTIONS. Questions purely Legal 1 00 Questions of mixed Law and Fact 101 Preliminary Facts 102 Idem sonans 103 CHAPTER VH. BURDEN OF PROOF. When on the Prosecution 104 When on Defendant 105 CHAPTER VIII. RES GEST^. The general Principle 106 Instances 107 CHAPTER IX. GUILTY KNOWLEDGE AND INTENT. How provable 108 Acts constituting other Offences not charged 109 When Knowledge not Essential 110 , Intent Ill X TABLE OF CONTENTS. CHAPTER X. VAKIANCB. SECTION Variance from Descriptive Allegations 112 Limitations of the Kule 113 Where the Proof is more extensive than the Charge .... 114 Where the Facts proved are the same in Legal Effect . . . 115 Variance as to Time 116 Variance as to Place 117 Variance as to Quantity and Value 118 Variance as to Names 119- Variance in Trials on Appeal 120 Miscellaneous Cases 121 CHAPTER XL HANDWRITING. ACCOMPLICES. DEFENDANT'S GENEKAL CHARACTEH. Handwriting , . . . . 122 Special Cases 123 Testimony of Accomplices . . . 124 The Corroboration . . .125 Miscellaneous Points 126 Defendant's General Character 127 Particular Facts 128 CHAPTER Xn. CONFESSIONS. Their Effect . 129 Confessions affect only the Party making them 130 Implied Confessions 131 Confessions induced by Promises or Threats 132 Threats 133 Special Cases 134 Miscellaneous Points 135 Their admissibility a Preliminary Question for the Court . . .136 TABLE OF CONTENTS. XI PART THIRD. OF PARTICULAR OFFENCES, AND OP THE PLEADINGS AND EVI- DENCE THEREIN. PRELIMINARY CHAPTER. FELONY. INSANITY. DRUNKENNESS. HUSBAND AND WIFE. SECTION Felony 137 Insanity 138 What Evidence of it admissible 139 What Evidence of it is sufficient 140 Drunkenness 141 Husband and Wife. Liability of Wife 142 Presumption of Coercion ........ 143 Husband's Liability for Acts of his Wife .... 144 How affected by each other's Acts and Declarations . . . 145 Their Testimony as affecting each other 146 Miscellaneous Points 147 CHAPTER L ABOETION. The Offence 148 The Indictment 149 The Evidence 150 CHAPTER II. ADULTERATED MILK. The Offence 151 The Indictment 151 a The Evidence 151 6 CHAPTER IIL ADULTERY. The Offence .... 152 The Indictment 153 The Evidence 154 Time and Place 155 What Evidence admissible 156 Other Acts showing Adulterous Disposition . . . .15 7 Xll TABLE OF CONTENTS. CHAPTER IV. ARSON. SECTION The Offence 158 The Indictment 159 The Time 160 The Ownership 161 The Value 162 Of Particular Averments 163 The Evidence 164 CHAPTER V. ASSAULT. The Offence 165 When deemed committed 166 Assault by Shooting 167 The Indictment 168 The Evidence 169 CHAPTER VI. BASTARDY. BIGAMY. BLASPHEMY. Bastardy 170 Bigamy 171 The Indictment and the Evidence 172 Blasphemy 173 CHAPTER VII. ' BTJRGLARY. The Offence 174 Shop, Office, etc 175 Burglars' Tools 176 The Indictment 177 Ownership of Premises 178 Shop or Store 179 Certain Averments immaterial ....... 180 Time 181 Formal Requisites 182 Burglars' Tools 183 The Evidence 184 Burglars' Tools 185 Special Points 186 TABLE OF CONTENTS. xm CHAPTER VIII. CARRIEKS OP PASSENGERS. COMMON DRUNKARD. COMMON EAILEK AND BRAWLER. SECTION Carriers of Passengers 187 The Indictment 188 Common Drunkard 189 The Indictment 190 The Evidence 191 Common Railer and Brawler 192 CHAPTER IX. CONSPIRACT. The Offence 193 Merger 194 Jurisdiction 195 The Indictment 196 Acts need not be alleged 197 The Evidence • . 198 CHAPTER X. COUNTERFEITING. CRUELTY TO ANIMALS. Counterfeiting. ... 199 Possession of Bills and Materials 200 Counterfeit Coin 201 The Indictment 202 Description . 203 The Evidence 204 The Scienter 205 Cruelty to Animals 206 The Indictment 207 The Evidence 208 CHAPTER XI. EMBEZZLEMENT. The Offence 209 The Intent 210 Defendant's Character or Capacity 211 XIV TABLE OF CONTENTS. SECTION Jurisdiction 212 The Indictment 213 The Evidence 214 The Intent 215 CHAPTER XII. ENTICING FEMALE. KSCAPE. EXPOSURE OF CHILD. EXTORTION. Enticing Female 216 Escape 217 Exposure of Child 218 Extortion 219 / Threat of Criminal Prosecution 220 The Indictment 221 The Evidence 222 CHAPTER XIII. FALSE PRETENCES. The Offence 223 To whom 224 Special Cases 225 The Indictment 226 The Evidence 227 For the Defence 228 Variance 229 CHAPTER XIV. FIGHTING. FORCIBLE ENTRY. Fighting 230 The Indictment 231 Forcible Entry 232 The Indictment 233 CHAPTER XV. FORGERY. The Offence 234 Under Statutes 235 Bank Bills 236 What is not Forgery 237 TABLE OF CONTENTS. XV SEOTIOK The Indictment 238 Copy of the Instrument set forth 239 The Evidence 240 For the Defence 241 Variance 242 CHAPTER XVI. HIGHWAY. HOUSE OP ILL-FAME. IDLE AND DISORDERLY PERSONS. ILLEGAL" FISHING. ILLEGAL VOTING. Highway 243 The Indictment 244 House of Ill-fame 245 The Indictment 246 The Evidence 247 Idle and Disorderly Persons 248 Illegal Fishing 249 The Indictment . ■ 250 The Evidence 251 Illegal Voting 252 The Indictment . . . ■ 253 The Evidence 254 CHAPTER XVII. LARCENY AND RECEIVERS. The Offence 255 Bringing Stolen Goods into the County 256 Subjects of Larceny 257 Larceny from the Person 258 Custody and Possession 259 Receivers 260 The Indictment 261 Value 262 Description 263 Bills and Notes 264 Larceny in a Building 265 Ownership 266 Receivers . . .267 The Evidence 268 Evidence inadmissible 269 Value 270 XVI TABLE OP CONTENTS. SECTIOH Variance 271 Larceny by Embezzlement 272 Keceivers 273 CHAPTER XVIII. LEWDNESS AND LASCIVIOUS COHABITATION. The Offence 274 The Evidence 275 CHAPTER XIX. . LIBEL. The Offence 276 Justification 277 The Indictment 278 The Evidence 279 Malice 280 Variance 281 Evidence in Defence 282 CHAPTER XX. LICENSS; LAWS. AUCTIONEERS. DOGS. HAWKEKS AND FEDLER3. INKKEEPEES. PILOTS. Auctioneers 283 Dogs 284 Hawkers and Pedlers 285 Innkeepers 286 Pilots 287 The Indictment 288 The Evidence 289 CHAPTER XXI. lord's day. The Offence 290 The Indictment 291 The Evidence 292 CHAPTER XXII. LOTTERY. The Offence 293 The Indictment 294 The Evidence 295 TABLE OP CONTENTS. XVll CHAPTER XXIII. MALICIOtrS MISCHIEF. SECTION The Offence 296 Th« Indictment 297 The Evidence 298 CHAPTER XXIV. MANSLAUGHTKB. MORTGAGE OF CHATTELS. Manslaughter . . . . ' 299 The Indictment 300 The Evidence 301 Dying Declarations 302 For the Defence 3(53 Mortgage of Chattels 304 CHAPTER XXV. MURDER. SUICIDE. The Offence 305 The Mode of Killing 306 The Cause of Death 307 The Indictment 308 The Evidence 309 Evidence inadmissible 310 Dying Declarations 311 What Evidence is sufficient 312 For the Defence 313 Insanity 314 Suicide 315 CHAPTER XXVI. NUISANCE. The Offence 316 Highway 317 The Indictment 318 The Evidence 31ft b XVni TABLE OF CONTENTS. CHAPTER XXVII. OUSTRUCTION OF JUSTICE. OFFENSIVE TRADES. ORDINANCES OF CITIES AND TOWNS. SECTION Obstruction of Justice 320 The Indictment 321 Offensive Trades 322 Ordinances of Cities and Towns 323 Tlie Indictment or Complaint 324 The Evidence 325 CHAPTER XXVIII. PERJURY AND SUBORNATION OF PERJURY. The Offence 326 As Bail 327 Subornation of Perjury 328 The Indictment 329 Offence as Bail 330 The Evidence 331 The Oath 332 Evidence admissible 333 Variance 334 Subornation of Perjury 335 CHAPTER XXIX. POISONING. POUND BREACH. Poisoning 336 Pound Breach 337 CHAPTER XXX. RAPE AND INDECENT ASSAULT. The Offence 338 The Indictment 339 The Evidence 340 Indecent Assault 341 TABLE OF CONTENTS. XIX CHAPTER XXXI. RESISTANCE TO OFFICER. SECTION The Offence 342 Resistance when justified 343 Powers of Officers 344 The Indictment 345 The Evidence 346 CHAPTER XXXn. RIOT. ROBBERY. SODOMY. Riot 347 The Indictment 348 The Evidence 349 Robbery 360 The Indictment 351 The Evidence 352 Sodomy 353 CHAPTER XXXin. ■UNLAWFUL GAMES AND ILLEGAL GAMING. USURY. The Offence 354 The Indictment . . ' 355 The Evidence . . ■ 356 Usury 357 PAET FOURTH. OF CRIMINAL PROCEDURE. CHAPTER I. AMENDMENT. ARREST. Amendment 368 On Scire Facias 359 Arrest 360 XX TABLE OP CONTENTS. CHAPTER II. AKKEBT OF JUDGMENT. SEOTIOS What is Sufficient Ground 361 What is not Sufficient Ground 362 What Objection too late 363 Cases from a Justice's Court 364 CHAPTEE III. CHALLENGE OF JUEOKS. Challenge for Cause 365 What not Sufficient Cause . . . . ■ .366 Peremptory Challenges 367 When the Eight to challenge must be exercised . . . . 368 ■ CHAPTER IV. COMPLAINT. When sufficient 369 When not sufficient 370 When Objection must be taken 371 CHAPTER V. CONTINUANCE. COSTS. Continuance 372 Costs; when Defendant liable 373 When not liable 374 CHAPTER VI. EXCEPTIONS. Bill of Exceptions 375 None sustainable as to Matters within the Discretion of the Court . 376 In respect to Instructions 377 The Excepting Party must be actually aggrieved . . . .378 In the Revisory Court 379 Special Points 380 TABLE OF CONTENTS. XXI CHAPTER Vn. INDICTMENT. INFORMATION. SEOTION Proceedings generally 381 Capital Cases 382 Grand Jury 383 Caption 384 When an Indictment will be quashed 385 Formal Requisites 386 Waiver of Defects . , 387 Information 388 CHAPTER VIII. ■ JTTKT AND JURORS. The Grand Jury 389 Grand Jurors 390 Trial Jurors 391 CHAPTER IX. JUSTICES OF THE PEACE'. Jurisdiction 392 Taking of Recognizances 393 CHAPTER X. NEW TRIAL. When granted 394 When refused 395 The Motion 396 CHAPTER XI. NOLLE PROSEQUI. When entered 397 When not allowed . .398 CHAPTER Xn. PARDON. PARTICULARS. Pardon 399 Particulars 400 XXll TABLE OP CONTENTS. CHAPTER XIII. RECOGNIZANCES. SECTION Requisites for Validity 401 Jurisdiction 402 Forfeiture 403 On Appeal 404 Procedure *. . . . 405 Scire Facias 406 Pleadings 407 Evidence 408 Defences 409 Bail 410 CHAPTER XIV. RECORDS AND CERTIFICATES. Records and their Requisites 411 Certified Copies 412 Errors and Erasures 413 Seal 414 Legal Effect of Records 415 Certificates and their Requisites 416 Their Legal Effect 417 CHAPTER XV. REVISORY PROCEEDINGS, INCLUDING TRIALS ON APPEAL. Jurisdiction 418 Appeal 419 Trial in Appeal Court 420 Certified Copy of Papers below 421 Identity of Offence 422 Errors disregarded 423 When Objections too late 424 Waiver 425 Certiorari 426 Writ of'Error 427 Exceptions 428 Presumptions 429 Record 430 Amendment 431 Sentence 432 Special Points ...... ... ... 433 TABLE OP CONTENTS. XXlU -CHAPTER XVI. SENTENCE. SZCTIOK When Valid 434 When Invalid 435 Extent and Nature of Punishment 436 Term . . ... . ' 437 Construction of Statutes 438 Several Counts 439 Fines and Penalties 440 Miscellaneous Points 441 Additional Punishment 442 When Sentence Valid 443 Defendant's Remedy 444 Special Points 445 CHAPTER XVII. TRIAL. Powers and Duties of Judge 446 His Opinion as to Weight of Evidence 447 Law and Fact 448 Instructions to Jury 449 Rights of Prosecution 450 Rights of Defendant 451 Rights of Counsel 452 Separate Trials 453 Special Points 454 CHAPTER XVni. VERDICT. Making up Verdict . . . . ' 455 When Valid generally 456 Verdict varying from the Charge in the Indictment . . . .457 Special Verdict 458 When Verdict set aside 459 Entering and Recording 460 Special Points • . . . . 461 XXIV TABLE OF CONTENTS. CHAPTER XIX. WAIVEK. SECTION In General 462 Formal Objections . 463 When no Waiver 464 CHAPTEK XX. WARRANT. Validity 465 Extradition 466 Search-warrant 467 Proceedings on Search-warrant 468 PART FIFTH. OF OFFENCES UNDER THE LIQUOR LAWS, AND OF THE PLEADINGS, EVIDENCE, AND PROCEEDINGS THEREIN. In General 469 CHAPTER I. OF THE MANUFACTURE AND SALE OF LIQUORS. THE OFFENCE. The Statute 470 Unlawful Sales 471 What constitutes a Sale . 472 Sales through Agents .473 Husband and Wife .......... 474 Defences 475 Town Ordinances 476 THE COMPLAINT OR INDICTMENT. Manufacture of Liquors . . 477 Sales. When Complaint sufficient ...... 478 When insufficient 479 Sale to an Agent 480 Joinder of Defendants ......... 481 Negativing Authority 482 TABLE OP CONTENTS. XXV SECTION Quantity sold 483 What is immaterial 484 Other Statutory Averments 485 THE EVIDENCB. Witnesses 486 What Evidence admissible 487 Want of Authority to sell 488 Time of Sale 489 Sale to Persons Unknown 490 Agency. Husband and Wife 491 What Evidence is sufficient 492 Evidence, when insufficient 493 Evidence for the Defence 494 CHAPTER II. COMMON SELLER. THE OFFENCE. The Statute 495 THE COMPLAINT OR INDICTMENT. When sufficient 496 When not sufficient 497 Joinder of Defendants and of Counts 498 THE EVIDENCE. What Evidence admissible 499 What not admissible 600 What Evidence is sufficient 501 Three Sales 502 When Evidence insufficient 503 Evidence for Defence 504 CHAPTER HI. EXPOSING AND KEEPING OP LIQUORS FOR SALE. THE OFFENCE. The Statute 505 THE COMPLAINT OR INDICTMENT. Want of Authority 606 Other Points 507 XXVI TABLE OP CONTENTS THE EVIDENCE. SECTION What Evidence is admissible 508 Defendant's Relation to the Premises 509 Evidence, when sufficient 510 When not sufficient 511 Evidence for Defence 512 CHAPTER IV. KEEPING A TENEMENT USED FOR THE ILLEGAL KEEPING OR SALE OF INTOXICATING LIQUORS. , THE OFFENCE. The Statute 513 The Locality 514 Agents. Husband and Wife 515 THE COMPLAINT OR INDICTMENT. When sufficient 516 Want of Authority, and other Points 517 THE EVIDENCE. What Evidence is admissible 518 What Evidence is sufficient 519 Evidence for Defence 520 CHAPTER V. TRANSPORTATION OF LIQUORS. THE OFFENCE. The Statute 521 THE COMPLAINT OR INDICTMENT. When sufficient 522 THE EVIDENCE. What admissible for the Prosecution 523 Evidence for Defence 524 TABLE OP CONTENTS. XXVU CHAPTER VI. PLEA OF FOKMEK JUDGMENT IN LIQUOR CASES. SECTION Autrefois convict 525 Autrefois acquit ^26 CHAPTER VII. PEOCEDUKE IN LIQUOR CASES. Of the Sentence 527 Other Matters 528 CHAPTER Vin. PROCEEDINGS IN SEIZURE CASES. Liability to Seizure 529 The Complaint ' . . . .530 The Search-warrant 531 When not sufficient 532 The Evidence 533 The Locality 534 The Seizure 535 The Notice 536 The Verdict 537 Other Matters 538 PAET SIXTH. OF CRIMINAL STATUTES, AND THE CRIMINAL JURISDICTION OF COURTS. CHAPTER I. OF THE VALIDITY OF CERTAIN STATUTES. Liquor Laws 539 Bill of Rights, Art. xii. The Crime to be fully described • . 540 Same. No person " to be deprived of his life, liberty, or estate, but by judgment of his peers, or the law of the land," and securing trial by jury 541 XXVm TABLE OF CONTENTS. SECTION Art. xxix. Eight of Trial by Impartial Judges .... 542 Fugitives from Justice ......... 543 Miscellaneous Points 544 General Principle 545 CHAPTER II. OF PRIOR AND SUBSEQUENT STATUTES, AND OF THEIR OPERATION AND EFFECT ; AND HEREIN OF EX POST FACTO LAWS. What is a Repeal 546 When no Repeal 547 Revival of Statutes 548 Effect and Operation of Statutes 549 Ex post facto Laws 550 CHAPTER m. OF THE CKIMINAL JURISDICTION OP COURTS. In General 551 Superior Court 552 Common Pleas 553 Probate Court . 554 Police Court 555 Police Courts in Special Localities 556 District Courts 557 Municipal Court of Boston 558 Justices of the Peace 559 CRIMINAL LAW. PART FIRST. OF CRIMINAL PLEADING IN GENERAL. CHAPTER I. OF THE INDICTMENT. § 1. It must set forth all the essential elements of the offence. The true test of the sufiBciency of the indictment in this respect is the question : Supposing all the facts stated to be true, is the defendant necessarily guilty of the offence charged ? If this cannot be answered in the affirmative, the indictment is insHifficient. Thus, removing a corpse without a license not being an offence under St. 1830, unless it were for dissection, the indictment not averring this purpose, judg- ment was arrested.^ So, an indictment for falsely assuming to be sheriff is insufficient without the qualification of " sheriff of this Commonwealth." ^ So, an averment that defendant "knowingly sold bad meat" is insufficient. Defendant's knowledge of the badness of the meat is an essential ele- ment of the offence, and this is not necessarily implied in an averment that he " knowingly sold " the meat.^ So, a charge against A. of adultery with B., " B. being then a married woman having a husband alive," was held insufficient to sup- port a conviction ; the indictment not certainly showing that A. and B. were not man and wife.'' So, an averment that 1 C. I/. Slack, 19 Pick. 304 (1837). ' C. v. Boynton, 12 Cilsli. 499 (1853). 2 C. V. Walcott, 10 Cash. 61 (1852). ^ C. <-. Moore, 6 Met. 5.43 (1843). 1 2 OP CRIMINAL PLEADING IN GENERAL. [Pakt I. defendant had ten or more counterfeit bills in his possession "on the same day," without adding "at the same time," is insufficient ; for it does not thus certainly appear that the statute offence has been committed.^ So, under St. 1838, c. 157, forbidding the sale of intoxicating liquor in quantities of less than fifteen gallons, a count was held bad which sim- ply averred the sale of one pint, without expressly negativing the sale of fifteen gallons or more. For the pint may have constituted a portion of a larger quantity sold, say fifteen gal- lons ; in which case no offence would have been committed.^ The count would obviously have been good had it charged the sale of " a less quantity than fifteen gallons, to wit, one pint." So, under the statute punishing larceny from " a building," a charge of stealing from " a refreshment saloon " was held insufficient ; for such a saloon is not necessarily " a building." ^ So, although, under the statutes, a verdict of for- nication may be found on an indictment for rape, such a ver- dict could not be supported unless the female were alleged not to have been defendant's wife.* Yet such an allegation would not be required to support a conviction of rape ; since a man may be a principal in the second degree in a rape on his wife. § 2. It must leave no element of the offence to be sup- plied by inference. Thus, under the statute punishing the sale of adulterated milk, which requires, to make the seller liable, that his name be recorded in the books of the milk in- spector, it is not sufficient to aver his name to be recorded in " the book of J. S. ; " although the complaint was signed by " J. S., inspector of milk." This addition was a mere de- soriptio personce, and therefore not put in issue by the plea of not guilty.^ It is obvious that though the averment in the indictment had been true, defendant's name may have been recorded in the private book of J. S. ; in which case he would not be liable under the statute. So, even where, in an in- dictment for a like offence, it was averred that defendant's 1 Edwards v. C. 19 Pick. 124 (1837). * C. C. V. Wade, 17 Pick. 395 (1835). 26 OF CBIMINAL PLEADING IN GBNEKAL. [Pakt I. § 11, and Gen. Sts. c. 172, § 12, in offences relating to real or personal estate, it is enough if it appear that the actual or constructive possession, or the general or special property, in whole or in part, be in the person or community alleged to be the owner.) So, in an indictment against a receiver of stolen goods, though the name of the thief need not be set forth, if it be alleged to be "J. S.," the proof must correspond with the allegation ; which becomes material by being made part of the description of the offence.^ So, on a charge of wilfully obstructing an engine of a railroad built " by the B. & W. Railroad Company," it is a fatal variance if the name proved be the "B. & W. Railroad Corporation." ^ So, the charge being injuring a building owned by " Nathan S. Hoard," the proof being of ownership by " Nathan Hoard," the variance was held fatal.^ The principle seems to have been pushed to an extreme where, in a trial for perjury, the charge being that defendant swore he had land in " East Cambridge, Mas- sachusetts," and the proof, that he swore he had land in " East Cambridge," without more, the variance was held fatal." 4 § 40. Exceptions to the rule are made in cases where the averment in question is not deemed to be a descriptive alle- gation ; that is, one forming an essential part of the descrip- tion of the offence. In many of the decided cases the dis- tinction stands out clear, while in others it is not very in- telligible. In libel, where the publication was charged to have been on the 21st of November, it was held supported by proof of publication on the 19th of November. The proof of any other day within the statute of limitations would have sufficed ; but aliter had it . been alleged that the newspaper " bore date " of the 21st. In that case the variance would have been fatal.* An indictment for the forgery of a promis- sory note need not set forth or allege an indorsement upon it ; for the indorsement is no part of the note.® A charge of 1 C. B. King, 9 Cush. 284 (1852). » C. !/. Varney, 10 Cash. 402 (1852). 2 C. V. Pope, 12 Cush. 272 (1853). « C. v. Ward, 2 Mass. 397 (1807) ; C. o. McAvoy, 16 Gray, 235 (1860). C. v. Adams, 7 Met. 50 (1843). * C. V. Hughes, 5 Allen, 499 (1862). Chap. II.] DESOfllPTION OF THE OFFENCE. 27 breaking into the shop of " A. and A. 2d " is supported by proof of a breaking into the shop of "A. and A. Jun. ; " for an addition to a name is no part of the description.^ Where the amount and value of notes embezzled was stated at f 65, and the proof showed it to be $70, it was held no variance ; the value of the notes being no part of the description.^ So, in false pretences by a sham certificate of stock, the allegation " of no value " was held not to be descriptive, and that there was no variance though the certificate was proved to be of some small value." ^ In a charge of disinterring a dead body, the cemetery being alleged to belong to " the First Congrega- tional parish in G.," it was held that this need not be proved, it being no part of the description of the offence, nor qualify- ing it.* A building which is No. 27 in a street may be de- scribed as " No. 22," if it be proved to be as well known by one name as by the other.^ Where the indictment charged a breaking into the shop of A., and the proof was that A. occu- pied it jointly with B., to whom it belonged, that there was no partition, but that each used his own part, it was held under Gen. Sts. c. 172, § 12, that there was no variance, though defendant was not shown to have broken into A. 'a part ; A. and B. being tenants in common.^ IC. V. Parmenter, 101 Mass 211 *C w. Cooley, 10 Pick. 37 (1830). (1869). 5 C.u.Intox.Liq. 6Allen,596 (1863> 2 C. V. Hussey, 101 Mass. 432 (1873). ec.v. Thompson, 9 Gray, 108 (1857). 8 a. V. Coe, 115 Mass. 481 (1874). CHAPTER III. DUPLICITY. § 41. What it is. Though several distinct offences may be charged in the same indictment, they must be charged in distinct counts. If more than one offence were charged in the same count it would lead to confusion. Where several issues are to be passed upon by a jury, it is important that they be kept as distinct as possible.-' Thus, charges of behav- ing rudely in a meeting-house and of interrujpting public wor- ship cannot be joined in one count.^ § 42. When the objection is available. As singleness in pleading is a rule founded chiefly on convenience, and duplicity does not usually cause any substantial injustice to defendant, it is deemed a formal defect only, and the objec- tion must be taken at the threshold of the proceedings, as by a motion to quash the indictment. It is not available in arrest of judgment or on error. ^ § 43. Several acts may be charged in one count, if they simply indicate the means by which the offence was com- mitted, or the manner of its commission. Thus, where a count for an attempt to set fire to a house set forth a break- ing and entering, it was held not double; these acts being introduced only as part of certain acts the whole of which combined constituted the offence charged,* and in false pre- tences by means of a counterfeit bill, the charge of uttering it was held merely incidental to the main charge ; so, no du- plicity.^ So, a charge of " keeping a house of ill fame, gam- 1 C. u. Wyman, 8 Met. 247 (1844). * C. v. Hamey, 10 Met. 422 (1845). 2 C. u. Symonds, 2 Mass. 163 (1806). ^ c. o. Hulbert, 12 Met. 446 (1847). 8 C. V. Tuck, 20 Pick. 356 (1838). Chap. III.] DTJPLIOIXY. 29 bling, prostitution," &c., under St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), was held not double. The uses were not so many distinct offences, but mere modes of the nuisance, which was the substantive offence.^ So, a count charging a nuisance under the same statute was held not double in stating also the keeping of a disorderly house at common law.^ And a count in an indictment for murder was held not double in stating the death to have been by wounds, and by starvation and exposure ; these being the means of committing the of- fence.^ So, where in a count for an assault with intent to commit rape under Gen. Sts. c. 160, § 27, a battery was also charged, it was said that a battery might be a part of the evidence proving the offence ; that not being of the essence of the offence, it need not be alleged ; but in its being alleged there was no duplicity.'* § 44. No duplicity where substantially but one oflfence is charged. Thus, a charge of " presuming to be a seller and selling " spirituous liquors is not double.^ So, under Rev. Sts. c. 68, § 2, against " setting up or promoting " certain ex- hibitions, " setting up and promoting " does not charge two offences.^ And the having possession of several forged notes may be charged in one count without duplicity." Under Gen. Sts. c. 165, § 28, a charge is not double which alleges that de- fendant was on a certain day, and from then to the making of the complaint, a lewd, wanton, and lascivious person in speech and behavior.* Under Gen. Sts. c. 162, § 6, a count alleging a counterfeit bank bill to have been " uttered and passed " is not double.^ So, under Gen. Sts. c. 84, § 1, " keeping open on the Lord's day for the purpose of doing business " does not charge two offences.^'' So, under St. 1825, c. 184, § 1, for- bidding the sale of lottery tickets, the words of the statute being " shall sell or offer for sale," a charge that defendant 1 C. u. Kimball, 7 Gray, 328 (1856). « C. v. TwitcheU, 4 Cush. 74 (1849) ; 2 C. 0. Hart, 10 Gray, 465 (1858). C. v. Harris; 13 Allen, 534 (1866). s C. !.■. Macloon, 101 Mass. 1 (1869). ' C. o. Thomas, 10 Gray, 483 (1858). * C. !). Thompson, 116 Mass. 346 » c. u. Parker, 4 Allen, 313 (1862). (1875). 9 C. u. Hall, 4 Allen, 305 (1862). s C. u. Wilcox, 1 Cush. 503 (1848). w C. K.Wright, 12 Allen, 187 (1866). 30 OF CIIIMINAL PLEADING IN GENERAL. [Pakt I. " offered to sell and did sell " is not double ; for these acts constitute but one offence.^ So, " did keep, offer for sale, and sell " spirituous liquors, charges but one off^nce.^ And in a charge of having in possession several forged notes there is no duplicity ; for there is but one offence.^ And a charge under Gen. Sts. c. 87, §§ 6, 7, for keeping a tenement for illegal pur- poses on a certain day, " and on divers other days between that day and the day of finding this indictment," is not bad for duplicity ; the offence of " keeping " being committible for one day or for a longer time.* § 45. No duplicity where the offence may coiisist of all or of either of the acts charged. Thus, where a Cambridge City ordinance prohibited the suffering of swine to go on a sidewalk and incumber or injure it, a charge was held not double which alleged the suffering to go on and injure. In this class of cases the offence is sufficiently charged by setting forth one or either of the acts forbidden.^ Rev. Sts. c. 126, § 20, by the words " buy, receive, or aid in the concealment of stolen goods " describes but one offence, committed in one of three ways ; and as a count alleging " receiving and aiding " charges but one offence, it was held that defendant was sen- tenciable, though the charge of receiving was insufficiently made.^ A charge under St. 1845, c. 27, of abortion by in- struments and by drugs in the same count is not bad for du- plicity ; and proof of the use of either is sufficient to convict.'' § 46. Matter which is mere surplusage will not cause duplicity. Thus, a charge that defendant " presumed to be a seller," &c., on a certain day, " and did then and there sell to A. B.," is not double. It was held that the first clause did not charge the being a common seller as a distinct offence ; for it limits it to a certain day, instead of charging it for a certain period. It might therefore be rejected as surplusage, leaving the rest a sufficient charge of a single sale.^ So, " did embezzle, steal," &c., is not bad for duplicity ; the rest being 1 C. V. Eaton, 15 Pick. 273 (1834). « C. v. Curtis, 9 Allen, 266 (1864). 2 C. V. Niciiols, 10 Allen, 199 (1865). « Stevens v. C. 6 Met. 241 (1843). 8 C. V. Thomas, 10 Gray, 483 (1858). ' C. u. Brown, 14 Gray, 419 (1860). » C. V. Dunn, 111 Mass. 426 (1873). » c. v. Stowell, 9 Met. 569 (1845). Chap. HI.] DUPLICITY. 31 a suflB.cient charge of larceny, that of embezzlement may be rejected as surplusage.^ § 47. No duplicity arises from the mere form of the pleading. Thus, " at Hopkinton, January 1st, and at Hopkin- ton from then to the finding of the indictment," was held not double. Though the repetition of the words " and at Hop- kinton " was not necessary, this did not constitute a charge of two offences.^ A count charged that "some person or per- sons unknown broke and entered with intent to steal, " contra formam statuti ; " and further, that defendant procured said person and persons to commit the ofEence, " contra formam statutV It was held that there was only one ofEence charged, that of defendant's procuring the acts to be done ; and that adding " contra formam statuti " at the end of a clause did not make a separate count of it.^ On the other hand, a charge that defendant on a certain day sold liquor to A., and also on another day sold liquor to B., was not double ; this constituting in fact two counts.* § 48. An indictm.ent for burglary constitutes an excep- tion to the rule as to duplicity. Thus, a couat that defend- ant " broke and entered a shop with intent to commit larceny, and did there commit larceny," is held not to be double.^ For, if convicted by a general verdict of guilty, defendant can- not be sentenced for the larceny.^ (This anomaly is some- times excused on the ground that the charge " and did steal " is only to make the intent to steal more certain. But this is the office of evidence, not of pleading. The exception has no basis but in long usage, and the sooner it is swept away the better for the symmetry of criminal pleading.) 1 C. V. Simpson, 9 Met. 138 (1845). 5 c. „_ Tuck, gO Pick. 356 (1838). 2 C. v. Woods, 9 Gray, 131 (1857). ^ q „. Bosworth, 22 Piclj. 377 (1839) ; 3 C. V. Glover, 111 Mass. 395 (1873). C. v. Hope, 22 Pick. 1 (1839), 1 C. ^ Dillane, 11 Gray, 67 (1858). CHAPTER IV. STJEPLUSAGE. § 49. What is surplusage. It is any matter immaterial to the issue. Thus, where the offence charged is not punish- able by statute, but only at common law, the words " contra formam statuti " may be rejected as surplusage.^ So, in an indictment for assault with intent to ravish, are the words " and her, the said A. B., then and there did beat, wound, and ill-treat." ^ So, in false pretences, the words " obtained in his capacity of merchandise broker " do not vitiate the indict- ment ; for one cannot commit this offence in any particular capacity.^ So, in abortion with the woman's consent, an alle- gation of an assault and battery, not being descriptive of the offence, is surplusage. And so also is an allegation of an in- tent to kill the child.* So, under St. 1864, c. 79, for keeping a house of entertainment open on the Lord's day "in said place of business," the words " of business " may be rejected as surplusage ; the rest of the allegation being sufficient.^ So, in a complaint for the sale of liquors, " defendant not being licensed as an innholder, and without any authority or license therefor," the defendant having proved a license as an inn- holder, it was held that the first of these clauses might be treated as surplusage, it not being material to the issue.^ So, in larceny of a bank bill, "of the goods and chattels of J. S.," though a bank bill is not properly " goods and chattels," these words may be stricken out.'' So, in a complaint to the Mu- nicipal Court of Boston " for the transaction of criminal busi- 1C.«. Reynolds, 14 Gray, 37 (1859). « C. u. Crowther, 117 Mass. 116 2 C. V. Hunt, 4 Pick. 2.52 (lfi26). (1875). 3 C. C. v. Lannan, 13 Allen, 563 (1866). 42 OF CRIMINAL PLEADING IN GENERAL. [Pakt I. keeping of a tenement for the illegal sale of liquors defendant pleaded : (1.) A license under the United States revenue laws to do the acts complained of. (2.) That he had paid a tax on the liquors in question. (3.) That the statute on which the indictment was founded was unconstitutional. The plea, thus setting up three distinct bars, was held bad. Under the old rule, in both civil and criminal cases, defendant could set up in his plea but one ground of defence. The Statute of Anne changed this rule in respect to civil cases ; but in criminal cases it remains unchanged. A plea in bar must answer the whole charge in the indictment. As to facts charged not specially met by the plea, it must either confess or deny them. Defendant cannot plead both the general issue and special matter to the whole indictment ; but he may plead the general issue to a part, and the special matter to the residue.^ § 61. Guilty and not guilty. To a charge of receiving certain specified stolen goods defendant pleaded guilty " as to $50 worth of them," without specifying which. It was held that no valid judgment could be rendered on such a plea.^ In one count of an indictment for murder A. was charged as an accessory of B., and in another count as an accessory of B. and C. B. had been convicted, but C. had not. It was held that defendant must plead to both counts, so far as they charged him with being an accessory of B.^ § 62. Nolo contendere. This plea has the same eifect as that of not guilty in all proceedings on the indictment ; so that one who has been sentenced on it to pay a fine has been, in a legal sense, convicted. But this plea, accompanied with a protestation of innocence, will not preclude defendant from denying, in a civil action, the acts charged in the indictment.* Under St. 1855, c. 215, § 35, there can be no conviction on nolo contendere unless the plea was received with the consent of the prosecution.^ 1 Nauer v. Thomas, 13 Allen, .572 « C. v. Knapp, 10 Pick. 477 (1830). (1866). * C. V. Horton, 9 Pick. 206 (1829). 2 O'Conndl v. C. 7 Met. 460 (1844). ^ c. v. Adams, 6 Gray, 359 (1856). Chap. VII.] ARRAIGNMENT AND PLEAS. 43 § 63. Misnomer. This objection can be taken only by a plea in abatement.^ If a defendant in misdemeanor plead misnomer in abatement and it is found against him, he has no right to plead over. Otherwise, if the plea be overruled as matter of law, on demurrer.^ Misnomer cannot be pleaded on appeal, which is only upon issues raised in the court be- low. The suggestion that a record of conviction under a wrong name would not protect from a second indictment for the same offence has, it is said, no force ; since, even if de- fendant were convicted under his true name, on a second in- dictment he would have to give proof of his identity.^ It is not error for defendant to be indicted and convicted as " A. alias B." By not pleading the misnomer in abatement, de- fendant admits he was rightly called by the names stated.* To a plea in abatement for misnomer the replication was that " defendant was as well known " by the name stated " as by any other." To this issue, evidence of defendant's real name is irrelevant ; for the prosecution may prove how he is called.^ The name of a town indicted had been altered by statute af- ter indictment found ; but the court refused to quash the in- dictment on that ground.^ Defendant being charged as " A., wife of B.," on a plea of not guilty, it was held that this addi- tion need not be proved ; that the objection should have been taken by a plea in abatement.'^ Thomas H. Perkins was in- dicted as " Thomas Perkins, Jun." Plea of misnomer in abatement. On demurrer to the plea it was held a misnomer, the Christian name being wrong ; though " junior " was no part of the name.^ To defeat a plea in abatement on this ground, it is enough if the jury find defendant's name to be substantially identical, idem sonans, with the one alleged ; as " Mars " for " Marres." ^ 1 C. V. Butler, 1 Allen, 4 (1861). ^ C. v. Philipsbnrg, 10 Mass. 78 2 C. V. Carr, 114 Mass. 280 (1873). (1813). 3 C. V. Darcey, 12 Allen, 539 (1866). 7 c. v. Lewis, 1 Met. 151 (1840). * Turns v. C. 6 Met. 224 (1843). 8 c, v. Perkins, 1 Pick. 388 (1823). « C. u. Gale, 11 Gray, 320 (1858). ^ C. b. Stone, 103 Mass. 421 (1869). CHAPTER VIII. PLEA OF FORMEK JUDGMENT. § 64. Autrefois convict. " No man shall be twice pun- ished for the same offence " is the legal principle on which is based the plea of autrefois convict in bar of the indictment. It is sustained by the record of conviction, showing that the same evidence that would be required to support the new in- dictment would have been admissible, and sufficient to con- vict under the former one.^ Thus, a conviction for keeping a tenement for the illegal sale of liquors between certain days named, would be a bar to a second indictment for such keep- ing at any time during the same period.^ A conviction for setting fire to a dwelling-house not completed or inhabited, under Rev. Sts. c. 126, § 5 (Gen. Sts. c. 161, § 4), was held to bar a second indictment for the same burning under § 3 (Gen. Sts. c. 161, § 2).^ A conviction of an offence without aggra- vation will bar an indictment of the same offence with aggra- vation.* Defendant had been convicted of being a common seller from July 1, 1855, till the finding of the indictment in February Term, 1856, on proof of three sales on August 27, 1855. It was held that the conviction would bar an indict- ment for any other sales during the period charged.^ And a former conviction before a justice of the peace is a good bar, though the complaint was defective, and the judgment on it erroneous, the justice having had jurisdiction.^ But a former conviction is no bar, unless defendant might have been con- 1 C. V. Carroll, 15 Gray, 409 (1860). * C. v. Burke, 14 Gray, 100 (1859) ; 2 C. K. Connors, 116 Mass. 35 (1874). C. v. Reynolds, 122 Mass. 454 (1877). 8 C. V. Squire, 1 Met. 258 (1840). ^ c. «. Armstrong, 7 Gray, 49 (1856). 6 C. V. Loud, 3 Met. 328 (1841). Chap. VIII.] PLEA OF FORMER JUDGMENT. 45 victed under the first indictment by proof of the facts alleged in the second.^ § 65. Tet one may be punished more than once for the same act, whenever the act involves two or more legal of- fences. Thus, where defendant had been convicted and sen- tenced for lascivious cohabitation with A., a woman who was not his wife, it was held that, defendant being a married man, this conviction was no bar to a subsequent indictment for the same act charged as adultery ; for this was another and a dis- tinct offence.^ So, a conviction for an assault with intent to kill is no bar to an indictment for murder, the offences being distinct.^ A husband's previous conviction for the same sales of liquor, on the same evidence, is no bar for the wife, in- dicted as a common seller under Gen. Sts. c. 87.* So, a hus- band's conviction for a nuisance under Gen. Sts. c. 87, § 6, is no bar to his wife's subsequent conviction of the same offence, committed at the same time, and in the same tenement ; the jury being satisfied that there was no coercion by the hus- band." A conviction for selling liquor on the Lord's day is no bar to an indictment for the same act charged as an illegal sale of liquors, the offences being different, though committed in the same act.^ So, a conviction for " keeping a tenement used " for the sale of liquors is no bar to a second indictment for " being a common seller," though the sales proved were at the same time and place.'' And a conviction for "keeping liquors to sell " is no bar to a complaint for " keeping a tene- ment " for such a purpose, though the evidence be the same of both offences.^ Of course, a defendant convicted as a common seller from April to September may be convicted on a second indictment at the same term for the same offence, from September to the finding of the indictment.^ § 66. A previous conviction no bar when procured by 1 C. V. Koby, 12 Pick. 496 (1832). 7 C. v. O'Donnell, 8 Allen, 548 (1864); 2 Morey v. C. 107 Mass. 433 (1871). C. v. Hogan, 97 Mass. 122 (1867). 8 C. o. Roby, 12 Pick. 496 (1832). » C. v. Sheehan, 105 Mass. 192 (1870); 1 C. V. Welsh, 97 Mass. 593 (1867). C. v. McShane, 110 Mass. 502 (1872). 5 C. V. Heflfron, 102 Mass. 148 (1869). » C. v. Cain, 14 Gray, 9 (1859). 8 C. V. Shea, 14 Gray, 386 (1860). 46 OP CRIMINAL PLEADING IN GENBKAL. [Pakt I. defendant himself. Thus, a conviction by a justice of the peace, on information of the party himself, was held no bar to a subsequent indictment for the same offence.-^ So, it is a good reply to a plea of autrefois convict that the former con- viction was obtained by defendant's fraud ; as where defend- ant, having committed an assault, had complained of himself a few hours afterwards to a justice of the peace ; and, failing to obtain a trial, had got a constable to complain to another justice of the peace, pleaded guilty, and was fined.^ § 67. Autrefois acquit. " No man shall be twice put in jeopardy for the same offence " is the legal principle on which is based the plea of autrefois acquit. But in this case, as in that of autrefois convict, there is no bar unless defendant might have been convicted under the first indictment by proof of the fact charged in the second.^ Thus, an acquittal as a " common seller on the 3d of June, and from then to the finding of the indictment," is no bar to an indictment for a sale on the 2d of June.* In larceny, and in similar offences, the indictment must truly describe the article ; else there will be a variance, and defendant may be tried again on the same facts differently charged, and thus for a different offence. Therefore, where defendant had been acquitted on an indict- ment for embezzling " Melton Cloth," on the ground that the evidence proved the article to have been " a Melton over- coat," the acquittal was held no bar.^ An acquittal of a lar- ceny of bonds was held no bar to a subsequent indictment for the same taking, as an embezzlement ; the first indictment not stating, and it not having been proved under it, that the bonds had been intrusted to defendant.^ There is a diversity between autrefois convict and autrefois acquit in their effects. Thus, where defendant had been acquitted of being a com- mon seller during a certain period, and set up the acquittal in bar to a subsequent indictment for a single sale during the same period, it was held that, though defendant's conviction 1 C. y. Alderman, 4 Mass. 477 (1808). * C. v. Keefe, 7 Gray, 332 (1856). 2 C. ti. Dascom, 111 Mass. 404 (1873). ^ c. v. Clair, 7 Allen, 525 (1863). 8 C. V. Roby, 12 Pick. 496 (1832). « C. o. Tenney, 97 Mass. 50 (1867). Chap. VIII.] PLEA OP FOEMEB JUDGMENT. 47 as a common seller would have been a conviction of all single sales during the period charged, and would thus have been a good bar, this was not the effect of an acquittal. For non constat, it was said, but that the acquittal was for want of proof of defendant's having been a common seller during the period ; and an acquittal of that charge did not show him to have been tried for the single sale.^ Defendant had been acquitted on an indictment for burning a barn ," the property of A. and B." To a second indictment for burning a barn, " the property of A. and C," he pleaded the former acquittal, averring the burning to have been the same ; and on demurrer, the plea was held insufficient.^ (But quaere ; for the demurrer admitted the ofEence to be the same ; and if the ground of the acquittal had been merely a variance, the prosecution could have set this up in reply. And the same objection seems applicable to the following case.) Defendant had been ac- quitted of receiving stolen goods " the property of A. ; " which he pleaded in bar to an indictment for receiving stolen goods " the property of B. ; " averring that the goods were the same as in the former indictment, and received from the same per- son, at the same time, in the same packages, and by the same act. Yet the plea was held bad.^ A formal acquittal on an indictment for breaking and entering a dwelling-house and stealing property of J. B. is no bar to a complaint for steal- ing at the same place and at the same time property of H. B., without proof that J. B. and H. B. are one and the same person.* Gen. Sts. c. 63, § 107, punishes the " obstructing of a railroad." § 108 punishes" acts with intent to obstruct" a railroad carriage. Defendant had been indicted and acquit- ted of the obstructing under § 107 ; the act proved being the placing of a rail on the track, but which caused no actual ob- struction. To a second indictment, under § 108, he pleaded the former acquittal. It was contended for defendant that under the former indictment he could have been convicted of the same act " with intent to obstruct." But it was held 1 C. V. Hudson, 14 Gray, 11 (1859). s c. „. Andrews, 2 Mass. 409(1807). C. V. "Wade, 17|Pick. 395 (1835). * C. v. Hoffman, 121 Mass. 369 (1876) 48 OP CRIMINAL PLEADING IN GENERAL. [Part I. that though the act was the same, there was no legal identity between the two offences. § 107 punishes only an actual obstruction, while § 108 punishes only acts with intent to obstruct ; and so the plea was held bad.^ An acquittal of " keeping a tenement " for the sale of liquor is no bar to an indictment for " selling " at the same time and place ; the offences being distinct. Under the second indictment it was not necessary that defendant should have been keeper of any tenement whatever ; while under the former one, defendant must have been acquitted had there been no proof of " keep- ing," notwithstanding any number of sales proved. The rule is that a judgment on the first indictment is no bar unless the evidence under the second would have sufficed to convict under the first.^ So, a former acquittal of " keeping a tene- ment for the illegal sale of liquors " is no bar to an indict- ment for " keeping liquors for sale," though the place and the instances be the same. The offences are distinct, and proof of the latter would not have been sufficient proof of the former.^ § 68. Where the court had no jurisdiction of the ofiFenoe, a former acquittal or conviction is no bar.* But where there was a former acquittal of embezzlement in the Municipal Court, whose jurisdiction does not exceed $50, the second in- dictment being for the embezzlement of $600, the court re- fused to infer from this fact the non-identity of the two of- fences. The value of the property embezzled might not have exceeded $50 ; in which case the Municipal Court had juris- diction. It was a question of fact, and the fact was admit- ted by the demurrer to the plea, which was accordingly sus- tained.^ § 69. When these pleas not sustainable. Nothing short of a final judgment will sustain the plea of autrefois convict or autrefois acquit. Thus, it is no ground for arrest of judg- lC.«.Bakeman, 105 Mass. 53(1870). < C. i/. Peters, 12 Met. 387 (1847). 2 C. ». Bubser, 14 Gray, 83 (1859). ^ C. v. Bosworth, 113 Mass. 200 3 C. V. McCauly, 105 Mass. ;:69 (1873). (1870). Chap. Vin.] PLEA OF FORMER JUDGMENT. 49 ment that another indictment for the same offence was pend- ing at the trial ; ^ nor of a plea in abatement.^ A nol. pros. of an indictment is no bar to another one for the same of- fence.2 Nor is a mere verdict of guilty.* The conviction eant in the plea of autrefois convict is not merely a verdict, but the judgment upon it/ (Yet in this very case it was said, on what grounds it does not appear, that, in Massachu- setts, it is still unsettled whether this plea is or is not sup- portable by a verdict of guilty on a good indictment not set aside.) An indictment for manslaughter which had been quashed, whether rightly or erroneously, for a defective de- scription of the wound, is no bar to another for the same of- fence.^ Neither is an arraignment before a justice of the peace.^ It is no bar that defendant had voluntarily confessed his guilt in testifying in another case in a court where there was no public prosecutor before the grand jury ; no pledge of immunity having been given.^ And where defendant, on the trial of his fellow clerk for larceny, had been called and ex- amined as a witness for the government, this was held to be no bar to the prosecution, no pledge having been given not to prosecute.^ In <7. V. Roly, 12 Pick. 496 (1832) it was ruled that neither the plea of former conviction or acquittal, nor defendant's ob- jection of having been previously put in jeopardy, would hold (1.) Where the court had no jurisdiction ; (2.) Where the indictment was so defective that no judg- ment could be rendered upon it ; (3.) If the trial was interrupted by the death or illness of a juror, or by other urgent necessity ; (4.) If the jury could not agree. Defendant cannot set up as a former putting in jeopardy 1 C. a. Murphy, 11 Gush. 472 (1853). « C. o. Gould, 12 Gray, 171 (1858). 2 C. V. Drew, 3 Gush. 279 (1849) ; C. • G. v. Golding, 14 Gray, 49 (1859). V. Berry, 5 Gray, 93 (1855). « G. v. Brown, 103 Mass. 422 (1869). » C. V. Wheeler, 2 Mass, 172 (1806). ^ C. v. Woodside, 105 Mass. 594 * C. V. Lahy, 8 Gray, 459 (1857). (1870). * G. V. Lockwood, 109 Mass. 323 (1872). 4 '50 OP CRIMINAL PLEADING IN GENERAL. [Paet I. for the same offence, that he had pleaded not guilty to the former indictment, "which plea he was allowed to withdraw in order to plead in abatement for misnomer after the jury was empanelled; which latter plea was found in his favor, and the indictment abated. ^ § 70. Convictions by justices of the peace. A plea of former conviction by a justice of the peace who had first or- dered defendant to recognize, and then revoked the order and fined him, was held good.^ But where the justice's record, though finding defendant guilty, showed him to have been bound over to a higher court, and though the case was one in which the justice had concurrent jurisdiction to try and sen- tence, this was held to be no prior conviction, and so no bar to an indictment.^ §■ 71. Form of the plea. A plea of former acquittal need not set out the record or facts to prove the identity of the offence.* Charge of larceny in a dwelling-house. Plea, for- mer conviction for pilfering, averring that the article taken was the same, that it was the same stealing, and • that the Police Court had jurisdiction. This plea was held bad in form, as not directly traversing the stealing in a dwelling- house ; but impliedly only, in the statement that the offence was within the jurisdiction of the Police Court ; the defect being cured, however, by pleading over. The proper plea would have been, "former conviction of the larceny," and " not guilty " as to the rest of the charge.* § 72. Procedure. Former acquittal must be pleaded spe- cially. It cannot be shown under the general issue.^ The issue of former conviction must be tried before that of not guilty ; but if they are tried together by agreement of coun- sel, both parties are bound by the result.' It is irregular to overrule a plea of autrefois acquit when no issue of law or of fact has been joined upon it.^ Autrefois acquit cannot be 1 C. V. Farrell, 105 Mass. 189 (1870). ^ c. v. Curtis, 11 Pick. 134 (1831). 2 C. V. Goddard, 13 Mass. 455 (1816). « C. v. Chesley, 107 Mass. 223 (1871). 8C. u. Harris, 8 Gray, 470 (1857); ' C.j;. Dascom, 111 Mass. 404 (1873). C. V. Many, 14 Gray, 82 (1859). » c_ „. McCauly, 105 Mass. 69 (1870) * C. V. Bosworth, 113 Mass. 200 (1873). Chap. VIII.] PLEA OF FORMER JUDGMENT. 51 joined with not gnilty, and must be disposed of first.^ With a plea of former conviction or acquittal defendant need not plead over to the charge ; for if the plea in bar be found against him he v?ill be put to plead to the indictment again.^ Where defendant pleads former conviction and not guilty, issue must be taken by the prosecution on the first plea, which must be tried before that an not guilty ; and if defendant, against his objection, be put to trial on both, and the court decide against him on the special plea, though the decision were correct, he is entitled to a new trial. A party has a right to be tried according to legal forms ; so, in this respect he had been injured.^ An indictment contained two counts. The first was for being a common seller during a certain period named. The second count was for a single sale during the same period. It was held that defendant was triable on the first count, though he had pleaded guilty to the second. His plea of guilty was no bar, neither would have been a verdict rendered upon it. If found guilty on the first count, judgment might be rendered against him, and a nol. pros, en- tered on the second count.* On a plea of former conviction, with profert of record, the prosecution suggesting diminution of record, certiorari may issue to bring it up.^ After convic- tion on the whole indictment, if one of the counts be cov- ered by a former conviction, a nol. pros, may be entered upon it, and judgment upon the remainder.^ iC.w.Bakeman,105Mass.53(1870). * C. . Goddard, 2 AUen.US (1861). ' C. v. Starkweather, 10 Gush. 59 2 Ibid. (18.52). 8 C. V. Wood, HI Mass. 408 (1873). ° C. v. Hudson, 11 Gray, 64 (1858). * C. V. Williams, 105 Mass. 62 (1870). Chap. III.] EXAMINATION OP WITNESSES. 61 though showing evasiveness in testifying, cannot be asked if he did not testify before the grand jury that he did know- certain facts that he nov/ swears he did not know ; because the question could have no other object than to discredit the witness.^ In Massachusetts, a witness may be impeached by proof of previous contradictory statements by him, without first calling his attention to them, but not by showing his omission on a former examination to state facts now stated by him.2 Where a witness's testimony to a fact is founded on a written memorandum of his produced at a former trial, and since lost, the opposite party may show, to discredit the wit- ness, that the memorandum then used was not in the witness's handwriting.^ To impeach a witness for the prosecution, de- fendant may prove by a grand juror that the witness testified difEerently before the grand jury.* A witness having ad- mitted, on cross-examination, certain medical advertisements to be his, they may be read to the jury to impeach his credit.^ Defendant's affidavit is admissible to show that he had made two difiierent statements concerning the offence.^ After a witness had answered " he had n't heard A.'s reputation for truth and veracity talked of a great deal," special questions about it were not allowed to be asked.^ (But would not fur- ther questions have elicited to what extent he had heard it talked about ?) Evidence is admissible of what was the wit- ness's character for truth eighteen months before the trial ; this interval not being deemed too great to afford a reasonable inference as to a continuous fact.^ When it is agreed that an absent witness would, if present, testify in a certain manner, he must be deemed to be unimpeached.^ After a party's wit- ness has been impeached, but not before, the party may ask him, in order to strengthen his testimony, whether he did not make the same statements about the time of the occurrence.^" The prosecution cannot corroborate the testimony of a wit- 1 C. V. Welsh, 4 Gray, 535 (1855). « C. .-. Starr, 4 Allen, 301 (1862). 2 C. u. Hawkins, 3 Gray, 463 (1854). ' C. v. Lawler, 12 4Uen, 585 (1866). » C. u. Hunt, 4 Gray, 421 (1855). « C. v. Billings, 97 Mass. 405 (1867). * C. V. Mead, 12 Gray, 167 (1858). » C. r. Donovan, 99 Mass. 425 (1868). 5 C. ./..Henry, 2 Allen, 173 (1861). i» C. v. Wilson, 1 Gray, 337 (1854). 62 OP CRIMINAL EVIDBNCB IN GBNEEAL. [Paet II. ness by showing that he had made the same statements at other times. But where the witness had stated that he saw a man jump out of a window of a tower where the murder was committed, and pointed out the window to an officer, the offi- cer was allowed to state which window it was.^ A mere at- tempt to impeach a witness by asking other witnesses as to his character, entitles the party who called him to support his character by other evidence.^ A witness who has been im- peached by showing that he once swore differently cannot be supported by proof of earlier statements, not under oath, agreeing with his present testimony. If this were allowed, the question would be, which statement he made the oftenest.^ It is not an inflexible rule of law th&tfalsus in uno falsus in omnibus.^ Defendant may ask a witness for the prosecution if any one on behalf of the government has offered a reward for testimony in the particular class of cases." The court may refuse to instruct the jury not to convict on the uncorroborated testimony of one whose character for truth is proved bad. This is always a question of fact for the jury, under all the circumstances appearing in evidence.^ § 83. Cross-examination. The extent and the nature of the inquiry on cross-examination, as well as to those questions that relate to matters irrelevant to the issue, depend en- tirely upon the discretion of the court, from whose ruling in such matters there is no appeal.'^ But this rule applies only where the object of the question is to test the witness's accu- racy and reliability ; though, unless the record indicate that a question the court declined to compel a witness to answer had some other object, the exception will not be sustained.^ A witness had sworn he had been formerly known by another name. The court's refusal to permit him to be asked on cross-examination, " for what reason," could not, it was held, 1 C. V. Piper, 120 Mass. 185 (1876). ' C. v. Savory, 10 Gush. 535 (1852) ; 2 C. V. Ingraham, 7 Gray, 46 (1856). C. v. Shaw, 4 Gush. 593 (1849) ; C. u. 8 G. V. Jenking, 10 Gray, 485 (1853). Silk, 111 Mass. 431 (1873) ; C. v. Lyden, ' C. V. Wood, 11 Gray, 85 (1858). 113 Mass. 452 (1873). 6 C. V. Saoket, 22 Pick. 394 (1839). 8 Q. v. Kelley, 113 Mass. 453 (1873). « G. V. Bosworth, 6 Gray, 479 (1856). Chap, in.] EXAMINATION OP WITNESSES. 63 be excepted to.^ A witness cannot be asked on cross-exami- nation as to irrelevant matter, merely to test his moral sense.^ On a trial for kidnapping, the prosecution had given evidence of a certain fact, to show defendant's guilty knowledge ; and defendant, in rebuttal, had proved by the daughter of one C. a conversation he had had with her father. It was held that, on cross-examination, C.'s daughter might be asked if her father had not been indicted for participation in the same kid- napping ; but this only for the purpose of showing her bias.^ In ]\Iassachusetts, a party, after closing his evidence, may in- troduce additional evidence by cross-examination to more fully prove his case.* In a joint trial, one of the defendants may draw out facts on cross-examination pertinent to his own de- fence, though hostile to that of the others.^ The fact of a witness having been in a house of correction is not provable on cross-examination, but only by the record of conviction.^ The court may refuse to allow a witness, who had sworn on his direct examination that he had not heard what certain persons said, to be asked by the party calling him if one of them did not say so and so.'^ (But was not this permissible as a means of refreshing the witness's memory ?) On a trial for burning a barn, a witness for the prosecution had sworn he had heard defendant and his father say that the owner burnt it himself, to make money. It was held that, on cross-exam- ination, defendant could not ask him if he had heard others say so beside his father.^ (Why not, if for the purpose of re- butting an inference of guilt that might be drawn from their remark ?) On cross-examination, a witness cannot be asked if he had not forged the name of J. S. to certain notes, or if he had not offered to suborn a vritness in another case ; the questions being only collateral to the issue, and irrelevant.^ § 84. Rights of witnesses. In a trial for the illegal sale of liquors the buyer is compellable to testify ; the statute 1 C. V. Quin, 5 Gray, 478 (1855). 6 C. v. Quin, 5 Gray, 478 (1855). 2 C.v. Shaw, 4 Cash. 593 (1849). 7 C. v. Cooley, 6 Gray, 350 (1856). 3 C. V. Turner, 3 Met. 19 (1841 ). « C. v. Hamilton, 15 Gray, 480 (1860). * C. 1/. Eastman, 1 Cush. 189 (1848). ^ C. u. Mason, 105 Mass. 163 (1870). 5 C. V. Kobinson, 1 Gray, 555 (1854). 64 OP CRIMINAL EVIDENCE IN GENERAL. [Paht II. subjecting him to no criminal liability.^ The court is not bound, on the application of the party against whom the wit- ness is called, to inform him that he cannot be compelled to criminate himself ; for this is the privilege of the witness alone.^ But if a witness be improperly made to testify, against his protest that his answers would tend to criminate him, a conviction would be, it seems, on illegal evidence.^ A defendant who goes upon the stand voluntarily cannot refuse to answer whether he was the publisher of a libel, on the ground that the answer would tend to criminate him ; for, by taking the stand, he waived his privilege.* So, where a de- fendant offers himself as a witness under St. 1866, c. 209, he may be asked, like any other witness, as to a fact impeaching his credibility ; for instance, as to his having been in a house of correction, the objection as to the production of the record having been waived.^ By offering himself as a witness, de- fendant waives his privilege as to giving evidence against himself.® On this ground, where a defendant in adultery had sworn in his own behalf he had never had intercourse with A. in Middlesex County, he was held compellable to answer, on cross-examination, whether he had had such in- tercourse elsewhere.' By taking the stand a defendant binds himself to tell the whole truth and keep nothing back, even if it criminate him ; and he may be cross-examined as to con- flicting statements made by him, to impeach his credit as a witness.^ An accomplice, who has already testified to facts criminating himself and the defendant, cannot refuse to an- swer other questions criminating himself.^ A witness is not compellable to let private entries be seen in a memorandum book that have no relation to the matter in issue.^" If a witness for the prosecution absent himself before he I C. u. Kimball, 24 Pick. 366 (1837). « C. v. Mullen, 97 Mass. 545 (1867). ■■^ C. V. Shaw, 4 Cash. 594 (1849). ' C. v. Nichols, 114 Mass. 285 (1873). 8 C.u. Kimball, 24 Pick. 366 (1837). ^ c. v. Tolliver, 119 Mass. 312 < C. V. Morgan, 107 Mass. 199 (1871 ). (1875). 6 C. V. Lannan, 13 Allen, 563 (1866) ; ^ C. u. Price, 10 Gray, 472 (1858). C. V. Bonner, 97 Mass. 587 (1867). w C. v. Haley, 13 Allen, 587 (1866). Chap. III.] EXAMINATION OF WITNESSES. 65 has been cross-examined, defendant will be entitled to a sub- poena and a capias ad respondendum against him if he de- sires to examine him.^ In a capital case, on motion, the court will exclude all wit- nesses but those being examined.^ § 85. Miscellaneous points. It is too late, on appeal, to except to a question by the prosecuting attorney as to whether witness bought any liquors of defendant at any time before the trial in the justice's court ; for if the ground of the objec- tion had been stated, the error might have been avoided.^ A witness may be asked if he knew of a sale of liquor from a certain day to the " finding of the indictment." If this period be uncertain, its uncertainty may be shown on cross- examination.* A witness cannot be asked to recur in his own mind to what he swore before the grand jury ; and then state when and how often he had obtained liquor from de- fendant. For, if what he swore before the grand jury was not true then, it was said, it is not true now. If it was true, it can be testified to like any other fact.^ 1 C. V. Buzzell, 16 Pick. 154 (1834). 4 C. u. Shea, 14 Gray, 386 (1860). 2 C. u. Knapp, 9 Pick. 496 (1830). 6 C. v. Phelps, 11 Gray, 73 (1853). 3 C. V. Hogan, 11 Gray, 312 (1858). 5 CHAPTER IV. "WHAT EVIDENCE IS ADMISSIBLE. § 86. Oral evidence. A tag on a valise giving a name or a direction is not within the rule excluding oral evidence of written documents. It is not a document.^ So, on a trial for keeping a liquor nuisance, oral evidence of tags bearing de- fendant's initials, found at the locality in question, was held admissible, in connection with other evidence, as tending to prove that defendant was still keeping the tenement. And so also of marks of defendant's initials on barrels arriving at the depot and carried thence to the same locality.^ So, in a similar case, oral evidence was held to be admissible of a United States stamp, dated " August 17, 1873," on a keg that had been seized ; this being, like tags or labels, a part of the description necessary for identification.^ Oral evidence is ad- missible to show what was submitted to the jury on a former trial.* On a trial under Gen. Sts. c. 63, § 108, for obstruct- ing a railroad, record proof of the legal organization of the railroad company is not necessary. It is enough to prove it a corporation de facto acting as such.^ On a trial for the murder of a constable while arresting defendant on a warrant, it appeared that the warrant bore an indorsement signed by a deputy sheriff, to the effect that he had arrested the defend- ant and had him before a magistrate. The defence was that the warrant was manifestly functus officio and exhausted, so that defendant could not be lawfully arrested upon it again. 1 C. V. Morrell, 99 Mass. 542 (1868). < C. v. Leonard, 9 Gray, 285 (1857). 2 C. V. Jennings, 107 Mass. 408 ^ C. u. Bakeman, 105 Mass. 53 (1871). (1870). » C. V. Powers, 116 Mass. 337 (1874). Chap. IV.] WHAT EVIDENCE IS ADMISSIBLE. 67 It was held that it might be shown by oral evidence that, in point of fact, the warrant had never been served, or the de- fendant ever arrested or brought judicially before a magis- trate ; that the warrant had been returned by the deputy sheriff to be served, and given by him to the constable for that purpose ; and that the warrant was therefore sufficient to justify the arrest. It was said that this was not contra- dicting an officer's return ; because until a formal return of a process to the magistrate, any memorandum or writing upon it is amendable at the pleasure of the officer, and so is not an official return. 1 § 87. Letters. A letter is not admissible to show when it was received. The letter itself is no evidence of this.^ Press copies of defendant's letter are admissible against him as sec- ondary evidence, if found in his possession, and appearing to be in his handwriting, as testified to by experts. And tele- grams in defendant's handwriting, if shown to have been re- ceived and transmitted by the wires, are admissible as his declarations, and also as primd facie proof of their having been received by the correspondent.^ But letters addressed to a defendant are not evidence against him unless shown to have been adopted by him, by word or deed.* And the con- tents of a letter to defendant's address taken out of the post- office, but not read or opened by him, are not admissible ; and such a letter, after being ruled out, must not go to the jury.^ § 88. Witnesses' opinions. As a general rule, the opinion of a witness is not admissible in evidence. Thus, when a witness has stated that he was at a certain distance from defendant, he cannot be asked if he would have been likely to hear if defendant had said so and so ; for this the jury can judge of as well as the witness.^ And defendant cannot give evidence of the opinion of his innocence held by a witness who has testified against him.^ 1 C. V. Moran, 107 Mass. 239 (1871). 5 c. v. Edgerly, 10 Allen, 184 (1865). 2 C. V. Burns, 7 Allen, 540 (1863). » C. v. Cooley, 6 Gray, 350 (1856). » C. v. Jeffries, 7 Allen, 548 (1863). ' C. v. Mooney, 110 Mass. 99 (1872). * C. V. Eastman, 1 Cush. 189 (1848). 68 OF CRIMINAL EVIDENCE IN GENERAL. [Pakt U. But there are exceptions to the rule excluding the opinions of witnesses ; as for instance, where the subject matter cannot be directly exhibited or reproduced to the jury, and where the conclusions derivable from it are within the scope of the un- derstanding of all men.^ Thus, correspondence between de- fendant's boots and certain foot-prints may be shown by any witness ; an expert in such a case not being required.'^ And in a liquor case, witness's statement, that he " supposed " " J. T. & Co.," marked on certain barrels, meant " John Tracy & Co.," was held admissible.^ The testimony of a witness in a case of murder, that " defendant took no interest apparently in what was going on ; that is, he took no interest in it to ask questions," is not objectionable as a statement of opinion, be- ing a mere description of defendant's acts and appearance.* But where, in a trial for murder, the defence offered a wit- ness to prove the results of experiments on a dynamometer with a bat of substantially the same form and weight as that with which the murder was alleged to have been committed, the evidence was held rightfully excluded as tending to mis- lead the jury, unless the experiments were shown to have been made under the same conditions as those proved on the trial.^ § 89. Defendant's declarations. These are always admis- sible against him ; and on a trial of two or more defendants for a joint ofEence, the declarations of one of them as to the joint enterprise are admissible against the others.^ But de- fendant's declarations are not admissible in his favor, unless they form part of the res gestce. Thus, defendant's declara- tions offered for the purpose of showing that his witnesses of an alibi had accurately remembered the date, were held inad- missible.' On a trial for murder, the prosecution had given evidence of a large sum of money being found upon defend- ant, the taking of which from the house of the deceased was 1 C. V. Sturtivant, 117 Mass. 122 * C. !). Piper, 120 Mass. 185 (1876). (1874). 6 Ibid. 2 C. c. Pope, 103 Mass. 440 (1869). ^ C. i/. Tivnon, 8 Gray, 375 (1857). » C. u. Jennings, 107 Mass. 488 ' C. i>. Williams, 105 Mass. 62 (1871). (1870). Chap. IV.] WHAT EVIDENCE IS ADMISSIBLE. 69 supposed to have constituted the motive for the murder. The defendant was not allowed, in explanation, to prove his hav- ing been charged with the theft of money some time before the murder, and that he did not deny the charge ; for this, it was said, would have amounted, at most, to evidence of defendant's own declarations.^ (But was not this evidence admissible as relating to a fact antecedent to the murder and entirely independent of it, and tending to refute the theory of the prosecution ?) § 90. Evidence in rebuttal. The general rule is that evi- dence, to be admissible in rebuttal, must be relevant to the issue. Thus, on a trial for arson, the evidence implicated one C. with the defendant. To show C.'s malice against the owner of the building, the government had proved that C. had prosecuted him. In rebuttal, defendant offered to prove probable cause for C.'s prosecution. But this was held inad- missible; the mere fact of the existence .of hard feelings being the material point, and the evidence offered being thus irrel- evant to the issue.2 The prosecution having proved that de- fendant had given a false account of his whereabouts on the night of the crime, the defence was held not entitled to show that he had previously given a different account to. others.^ On the other hand, in the trial of a police officer as acces- sory to a burglary, it was held that, to explain his frequent intercourse with other officers about the time of the offence, he might give in evidence his conversations with them as to the best means of capturing the principals, and also informa- tion received by him on asking those he met while pursuing the burglars.* In a trial for rape, the prosecution having given evidence of a pursuit by a constable after the commission of the offence, and his description of the ravisher's dress as received from the woman, defendant was allowed to show by vthe person inquired of that the dress described differed from the one worn by him that day.^ In a trial for perjury, a wit- 1 C. V. Sturtivant, 117 Mass. 122 » q. ■;. Goodwin, 14 Gray, 55 (1860). (1874). » C. u. Robinson, 1 Gray, 555 (1854). 2 C. V. Vaughan, 9 Cush. 594 (1852). « C. i;. Reardon, i Gray, 420 (1855). 70 OF CRIMINAL EVIDENCE IN GENERAL. [Part II. ness for defendant had sworn to his identity in relation to the burning of a ship. The prosecution, to impugn the witness's motives, had shown a reward to have been offered for the in- cendiary. This evidence was held to be irrelevant ; but inas- much as it had been admitted, it was held that defendant was properly allowed to rebut it by proof that the witness had come reluctantly from another State, and only at the urgent request of the insurers.^ A buyer of liquor who was a wit- ness for the prosecution had sworn, on cross-examination, that the justice of the peace had intimated to him that proceedings on the witness's own recognizance to appear would be stayed if he would testify against defendant. In rebuttal, the pros- ecuting attorney was allowed to prove his own conversation with the witness in which he gave an absolute promise that there should be no proceedings against him.^ § 91. Evidence of other oflFences. Though evidence of one offence is inadmissible to prove the commission of another, it may be so connected with a material fact as to render its introduction necessary.^ As where, on a trial for burglary and larceny, an accomplice testified that the original plan for the burglary was concocted in 1873, but that it was not then carried out ; that the operations of the conspirators were re- sumed in 1875, and resulted in the commission of the offence charged. It was contended for the defence that the plan of 1873 having been abandoned, the acts of the conspirators under it constituted a distinct offence, evidence of which was not admissible in proof of the offence for which the defendants were on trial. But it was held that the execution of the plan of 1873 had not been abandoned, but only suspended ; that the conspiracy of 1873 was admissible in explanation of that of 1875, with which it was connected ; that the whole history of the offence, from its first inception, was admissible in evi- dence ; and that, being competent, the evidence was not ren- dered incompetent by its tending to prove the commission of other crimes. And so as to the acts of the defendants and of 1 C. V. Brady, 7 Gray, 320 (1856). ' C. v. Call, 21 Pick. 515 (1839). 2 C. V. Bent, 16 Gray, 239 (1860). . Chap. IV.] WHAT EVIDENCE IS ADMISSIBLE. 71 their co-conspirators in preparing for the commission of the burglary.^ § 92. Corroborative evidence. In a trial for libel the libellous charge was that " A. was a licentious scoundrel." Defendant had proved by a Mrs. M. that, nine years before, A. had sought to have intercourse with her. It was held that he could not be allowed to corroborate this by the production of a letter she then wrote to inform her husband of it ; first because her evidence had not been impeached by proof that she had ever told a different story ; and secondly, at all events, it was not admissible to show that she had made earlier state- ments agreeing with the present one.^ § 93. Testimony of a deceased witness. Evidence is ad- missible of what a deceased witness had testified on a prelimi- nary examination before a justice of the peace, if the defend- ant was then present face to face with him, and might have cross-examined him. But in such case the whole testimony on the point and the precise words must be given, the sub- stance of it not being admissible.^ QSemble, there are two objections to this ruling. (1.) Giving " the precise words " would be in most cases impracticable. A conscientious wit- ness would be very cautious as to testifying to exact words, while a reckless one would not. A memory that could carry for any length of time the exact words in which testimony was given would be a very exceptional one, and the mere professing to give them would discredit the witness with all intelligent men. (2.) The rule thus laid down is in direct con- flict with the principle established in all similar cases. In murder, for instance, it is sufficient to give the substance of the dying declaration of the deceased. So when secondary evidence is offered of the contents of a lost writing ; and so, in a prosecution for perjury, as to the testimony alleged to be perjured.) § 94. What is not admissible. A deposition taken be- fore the trial in perpetuam rei memoriam is not admissible in 1 C. V. Scott, 123 Mass. 222 (1877). » C. v. Richards, 18 Pick. 434 (1836). 2 C. u. Harper, 7 Allen, 539 (1863). 72 OF CRIMINAL BVIDBNOB IN GENERAL. [Paet U. evidence.^ On a trial for malicious mischief, evidence of de- fendant's threatening language some time after the commis- sion of the offence is inadmissible to prove his animus? A passage from a book of medical jurisprudence cannot be read In evidence to the jury, though the witness, a physician, states that he agrees with it.^ Though no formal reply have been made to an invalid plea, this does not make its averments evi- dence for the defence. As in a demurrer ore tenus, only the facts well pleaded are admitted.* On a trial for the robbery of a bank committed by masked burglars, the cashier, who was kept by them under guard during the robbery, testified that he recognized one of the de- fendants by his voice. It was held that the man could not be permitted, as requested by the defence, " to repeat some- thing," in order that the witness might point out the peculi- arity in his voice by which he had recognized him ; that the man was not under oath, and there would b© no means of knowing whether he would speak in a natural or in a simu- lated voice.^ Assault on December 12, with intent to ravish. The prosecution offered in evidence what the woman told the officer who afterwards arrested defendant, but this was ex- cluded on defendant's objection. It appearing that the ar- rest was not made till December 19, defendant then offered to prove that he was at home during that interval, and could have been easily found, as tending to show that the woman could not have told the officer that he was the man ; but in- asmuch as defendant persisted in his objection to the evidence excluded, the evidence offered by him for the purpose stated was held not admissible.® Where there was direct evidence of defendant's having com- mitted the crime charged at a particular place, it was held that he could not introduce evidence to show that his going there was for an innocent purpose, although the prosecuting 1 C. V. Eicketson, 5 Met. 412 (1843). * C. v. Lannan, 13 Allen, 563 (1866). " C. V. Smith, 2 Allen, 517 (1861). « C. v. Scott, 123 Mass. 222 (1877). ' C. V. Sturtivant, 117 Mass. 122 « C. v. Fitzgerald, 123 Mass. 408 (1874); C. V. Brown, 121 Mass. 69 (1877). (1876). Chap. IV.] WHAT EVIDENCE IS ADMISSIBLE. 73 attorney in his opening Lad contended that his going there was with intent to commit the crime. The indictment charg- ing merely the commission of the crime, defendant's intent in going there was irrelevant to the issue.^ § 95. Hearsay. On a trial for piloting in Boston harbor without a license, the prosecution offered in evidence the state- ment of the captain of the piloted ship before the commis- sioners of pilots ; but it was held mere hearsay and inad- missible.^ The declarations of ,an alleged owner of property embezzled, made before his death, were held inadmissible to prove his title. He not being a party to the record, the evi- dence was mere hearsay.^ On a trial for obtaining a check by means of a note with a forged signature, defendant's wit- ness cannot testify to the maker's having said that he had au- thorized the signature. This was mere hearsay. In a civil action, the maker's admission would have been competent.* On a trial for the adulteration of milk, it was held that the certificate of the milk inspector was no evidence ; but its in- troduction was cured by his being subsequently examined, and swearing to all the facts it contained.^ In a trial for allowing cattle to go on a sidewalk, defendant was not allowed to dis- prove his ownership of the cattle by a way-bill.^ The prose- cutrix in larceny, to show the amount of money that had been stolen from her possession, offered receipts of three parties to whom she had made payment ; but the evidence was held in- admissible.'^ In a trial for murder, the theory of the prosecu- tion was, that a sum of money found on defendant's person had been taken by him from the house of the deceased, and constituted the motive of the murder. It was held that de- fendant might give evidence to show there was no money there ; but that he could not do this by the administrator of the estate, stating it as the result of his inquiries.^ On a trial for larceny, an officer was asked by the prosecution " what he 1 C. V. Blair, 123 Mass. 242 (1877). ^ C. w.Leavitt, 12 Allen, 179 (1866). 2 C. V. Ricketson, 5 Met. 412 (1843). ' C. a. Cannon, 97 Mass. 337 (1867). 8 C. c7. Sanders, 14 Gray, 394(1860). » C. v. Sturtivant, 117 Mass. 122 * C. V. Goddard, 2 Allen, 148 (1861). (1874). 5 C. V. Waite, 11 Allen, 264 (1865). 74 OF CRIMINAL EVIDENCE IN GENERAL. [Part II. did after A., from whom the money was stolen, told him of the commission of the offence ? " The answer was, " Started for the defendant." The question and the answer were both held admissible.^ (But the question had obviously no other object than to bring out in evidence what A. had told the officer. Was not this permitting that to be done indirectly which, by the rules of law, could not be done directly ? The same objection, semble, applies to the ruling in C. v. James, 99 Mass. 438 (1868), where, after a defendant's confession had been excluded, it was allowed to be proved that defend- ant had said to the witness " something about " a particular weapon, on which the witness went to a certain place and there found the weapon. But both these cases seem to be now overruled by the more recent one of O. v. Fagan, 108 Mass. 471 (1871), where it was held that evidence thai? the person robbed described the robber to the officer, and that the officer thereupon went in search of the defendant, was not admissible to identify defendant as the robber.) § 96. Miscellaneous instances of admissible evidence. Defendant, by admitting aname on a forged bond to be ficti- tious, cannot prevent the prosecution from proving it so by other evidence.^ On a trial for the sale of lottery tickets, ar- ticles seized on a search-warrant are admissible in evidence.^ When the books of account of the opposite party are called for, and he is cross-examined on entries in them, they are in the case, and all their contents are evidence for both parties.* Papers found among an insolvent's effects are admisible ; but it must be proved by the messenger that he took them under his warrant and turned them over to the assignee. And the assignee must prove that they were among those received from the messenger.® The contents of a complaint and warrant, lost after return, are provable by secondary evidence ; and the substance is sufficient without the exact words being given.^ On a trial for burning goods insured, defendant not producing 1 C. V. Moulton, i Gray, 39 (1855). * C. u. Davidson, 1 Cush. 33 (1848). 2 0. V. Costello, 120 Mass. 358 ' C. u. Eastman, 1 Cush. 189 (1848). (1876). ■> C. V. Roark, 8 Cush. 210 (1851). s C. V. Dana, 2 Met. 329 (1841). Chap. I v.] WHAT EVIDENOB IS ADMISSIBLE. 75 the policies, after a notice to do so, secondary evidence of their contents may be given.^ Though the caption of an in- dictment bear date of the first day of the term, the real time of its finding may be shown by evidence aliunde ; as by the .clerk's record of its return. So that, if the time of the com- mission of the offence, as proved, be subsequent to the date of the caption, the objection may be met by proof of the real date of the finding of the indictment.^ An omission to prove a deed by an attesting witness is cured by his being subse- quently examined. There are cases where a deed comes in only collaterally, not to prove title ; and an attesting witness is then not necessary.^ When a witness gives part only of a conversation, the adverse party is entitled to bring out all the rest of it relating to the matter in question.* Personal in- spection of an infant witness by a jury is competent evidence to prove the infancy.^ The defendant's testimony as a wit- ness, taken down before a fire inquest under the statute, and signed by him, is admissible against him, though it do not appear he was cautioned that he need not criminate himself.^ Evidence is admissible to identify defendant by his voice alone by those who heard it ; especially if the jury be instructed that they ought not to convict on this evidence alone.'' A witness for the prosecution having proved, under defendant's cross-examination, the hostility to defendant of a former wit- ness, he may be questioned by the prosecution as to the cause, " to show to what extent it might influence him," though this would be going into collateral facts.^ Defendant when examined as a witness may testify as to his own intent, and also to facts corroborative of it.^ Certain scrip had been found on the defendant. A witness for the prosecution was allowed to describe it, for the purpose of identifying it, the prosecuting attorney stating that it would be produced.^" 1 C. !). Goldstein, 114 Mass. 272 « C. t. King, 8 Gray, 501 (1857). (1873). ' C. V. Williams, 105 Mass. 62 (1870). 2 C. 6-. Stone, 3 Gray, 453 (1854). « C. v. Jennings, 107 Mass. 488 (1871). s C. V. Castles, 9 Gray, 121 (1857). » C. i;. Greene, 111 Mass. 392 (1873). * C. V. Keyes, 11 Gray, 323 (1858). i" C; v. Sturtivant, 117 Mass. 122 ' C. V. Emmons, 98 Mass. 6 (1867). (1874). 76 ON CRIMINAL BVIDBNOB IN GENERAL. [Part II. When a witness states in English what defendant had told him in German, he speaks as a witness, not as an interpreter, and need not be sworn as such. This is necessary only when testimony is given in court in a foreign language.^ On a trial for the robbery of a bank, an accomplice was per- mitted to testify, against defendant's objection, that nearly a year after the robbery he took a director of the bank to see one Connor, in relation to obtaining a return of the property stolen. The bank director was also allowed to testify to the, same fact. It was held that the evidence was competent ; the fact stated being a part of the transaction, and tending to corroborate the testimony of the accomplice, that he and Con- nor were members of the conspiracy.^ Whether or not there is evidence of a conspiracy must be determined by the presid- ing judge ; and in case of a conspiracy, all acts of the con- spirators in furtherance of the common purpose are admissi- ble, though not shown to have been known to the defendants on trial. On this ground several "personals" in the N6w York Herald, inserted by some of the co-conspirators at a dis- tance from one of the defendants, were held admissible against him, whether seen by him or not.^ Where the question was as to the identity of defendants with men who had robbed a bank, and who had left on the premises drawers and other ar- ticles, it was held that the testimony of one Hall, to the effect that he had sold drawers and other articles similar to those left by the robbers, to one or two men, a day or two before the robbery, but could not say that either of defendants was the purchaser, was properly receivable, on condition of there being subsequent evidence introduced tending to show that these two men were the defendants ; the testimony being thus sufficiently connected with defendants to entitle it to go to the jury, who alone were the judges of its weight.* An informing witness testified to his having bought liquor at defendant's house ; could not say when, but thought it was 1 C. V. Kepper, 114 Mass. 278 » Ibid. (1873). ' Ibid. 2 C. V. Scott, 123 Mass. 222 (1877). Chap. IV.] WHAT EVIDENCE IS ADMISSIBLE. 77 within a year ; and that there was a hearing before the mag- istrate. It was held that the prosecution might ask him if he had testified to this same sale before the magistrate, in order to fix the time of the sale.^ 1 C. V. Sullivan, 123 Mass. 221 (1877). CHAPTER V. WHAT EVIDENCE IS SUPPICIENT. PRESUMPTIONS. § 97. Generally. Every fact in circumstantial evidence must be proved beyond reasonable doubt. All the facts must be consistent with each other, and with the main fact to be proved ; and all together producing a moral certainty that de- fendant committed the offence.^ There is no rule that the evidence must always equal, at least, that of one unimpe'ached witness. It is enough if the jury are satisfied of defendant's guilt beyond reasonable doubt.^ But the jury are not to convict unless the facts proved exclude every hypothesis but that of guilt.^ It is never necessary to prove the whole of an offence charged, provided an offence be proved of which defendant could be convicted under the indictment. Thus, where the charge is a sale of " intoxicating and mixed liq- uors," it is sufficient to prove the sale of gin alone.* The criminal intent is sufficiently proved if the usual consequence of defendant's act be such as to cause the mischief in ques- tion.s The precise day when the crime was committed need not be proved as alleged, provided it be before the finding of the indictment, and within the period of statutory limitation.® It is not necessary to prove what everybody knows ; for in- stance, that gin is intoxicating. It might as well be required to prove it a liquid.'^ When there is no legal evidence against defendant, the judge is bound so to instruct the jury; and his refusal to do so is a ground of exception.^ But the fa,ct 1 C. V. Webster, 5 Cash. 295 (1850). 6 c. v. Bakeman, 105 Mass. 53 ■■' C. V. Tnttle, 12 Gush. 502 (1853). (1870). 8 C. V. Goodwin, 14 Gray, 55 (1860). « c. v. Dacey, 107 Mass. 206 (1871). * C. V. Leonard, 11 Gray, 458 (1858). ' C. u. Peckham, 2 Gray, 514 (1854). » C.v. Packard, 5 Gray, 101 (1855). Chap. V.] WHAT EVIDENCE IS SUFFICIENT. 79 that the witness fixes the time of the commission of the of- fence after the finding of the indictment does not entitle de- fendant to the instruction that there is no evidence ; provided the other facts stated by him show that the offence was com- mitted, and that the jury might infer from them that the witness was mistaken as to the time.^ § 98. Special rulings. The witness " thought " that the lady who sold him the liquor was the defendant, but could not positively swear that she was. This was held sufficient to authorize a conviction. The weight and effect of the evi- dence was for the jury exclusively.^ In another case, the sale of the liquor was proved by a disclosing witness, who had been arrested for drunkenness, and who had disclosed on the promise of being discharged without prosecution, and was dis- charged. It was held that the court was not bound to charge the jury that they were to receive his evidence with caution and distrust.^ (But if the court is not bound to so instruct the jury, where the witness has been bribed to testify against the defendant, it is difficult to conceive of a case where such an instruction may be legally called for.) In a trial for po- lygamy, the indictment alleged a subsequent cohabitation of defendant with the second wife for the space of six months. The chaVge was held sufficiently proved by evidence of cohabi- tation at any time within six mouths after the second mar- riage.* Where the proof was of a sale of liquors on " India Wharf," it was held that the jury might infer that India Wharf "of Boston" was meant; no objection having been made to the proof at the trial ; ^ and it was held in another case that if there was any circumstance tending to prove that defendant's statement, of his having property in Gloucester, in the County of Essex, meant " in the State of Massachu- setts," the jury might so find.^ A certificate by one who was really clerk of the Police Court that a complaint signed " J. 1 C. V. Irwin, 107 Mass. 401 (1871). * C. v. Godsoe, 105 Mass. 464 (1870). 2 C.K. Mansey, 112 Mass. 287 (1873 = C.u.Ackland, 107 Mass. 211 (1871). 8 C. w. Whitecomb, 12 Gray, 126 « C. w.Butland, 119 Mass. 317 (1875). (1858). 80 OF CRIMINAL EVIDENCE IN GENERAL. [Part H. H. Newton," was made by John H. Newton, sufficiently shows it to have been made and signed in Massachusetts.^ Mere proof of a sale of beer was held not sufficient for conviction. It might have been small beer, not intoxicating.^ The pre- cept of the governor of another State, appointing an agent to receive a fugitive from justice on requisition made, is primd facie evidence of the truth of its recitals.^ A warrant in the hands of a deputy sheriff purporting to be issued by a tax- collector is primd facie evidence of its having been issued by him.* Larceny of barilla by a miller. It was held that though the adulteration was proved by circumstantial evidence only, the prosecution was not bound to produce the truckman who carried it to and from the mill, or prove that it was not adulterated by the way.^ After the burglary charged, defend- ant was proved to have disappeared from the city. This was admitted in evidence as a suspicious fact, provided the jury should find it was a flight, and the burden of showing this was on the prosecution. But even a flight, though unex- plained, would not of itself be conclusive.^ In C. v. 0' Bald- win, 103 Mass. 210 (1869), certain evidence of a Christian name was held to be sufficient for the jury. § 99. Presumptions. Until the prosecution has made out a primd facie case, defendant's omission to produce rebutting evidence cannot be regarded by the jury as a circumstance in the case.'^ But the omission to call a witness in defendant's employ, who could probably show his innocence, is a fair sub- ject of comment to the jury.* Under St. 1855, c. 215, § 1, declaring that lager beer shall be deemed to be intoxicating, it may be described as being so, and no evidence contra will be receivable.^ An innkeeper's license by the Court of Ses- sions raises the presumption that it was granted on propel evidence ; as, the recommendation of the selectmen. i° It 1 C. V. Quincy, 5 Gray, 478 (1855). 7 C.v. Hardiman, 9Gray, 136(1857). 2 C. V. Hardiman, 9 Gray, 136 (1857). » C. v. Clark, 14 Gray, 367 (1860). » C. V. Hall, 9 Gray, 262 (1857). ^ C. v. Anthes, 12 Gray, 29 (1858) ; * C. V. Gearing, 1 Allen, 595 (1861). C. v. Bubser, 14 Gray, 83 (1859). 6 C. V. James, J Pick. 375 (1823). w C. v. Bolkom, 3 Pick. 281 (1825). « C. V. Annis, 15 Gray, 19 (1860). Chap. V.] PRESUMPTIONS. 81 seems that a certificate of authority for the sale of liquors being proved, the giving of a bond will be presumed ; the statute requiring a bond to be given before the delivery of the certificate.^ There is no presumption either way as to the credibility of any witness, even if the witness be the de- fendant himself, who has taken the stand voluntarily. It is to be determined by the jury, in view of all the circumstances in the case.^ The defendant had not testified himself, and had called no witness ; and the jury were instructed that, though there was no presumption from the defendant's not testifying himself, they might weigh the fact of his not having adduced evidence apparently in his power. But this instruction was held erroneous, because, unguarded, it was equivocal and mis- leading, and likely to induce the jury to construe against de- fendant his own omission to testify.^ 1 C. V. Pntniam, 4 Gray, 16 (1855). » C. v. Harlow, 110 Mass. 411 (1872). 2 C. V. Wright, 107 Mass. 403 (1871). CHAPTER VI. JUDICIAL QUESTIONS. § 100. Questions purely legal. The reasonableness of a by-law is a question of law for the court, and evidence of it to the jury is inadmissible.^ It is for the court to decide, on inspection, what the words of an indictment are.^ So, also, whether certain words have been erased from the indictment.^ And so as to any erasure in the record.* § 101. Questions of mixed law and fact. These are to be decided by the jury, under the instruction of the court ; as whether a barn was within the curtilage of a house.^ So, in a trial for setting fire to a building, where a board taken from the building, partly burnt, is exhibited in court, whether the board was so affected by the fire as to show a " burning " within the meaning of the act.^ An apparent exception to this rule prevailed in trials for libel, before the defendant had a statutory right to offer the truth in evidence. It was deemed to be a question exclu- sively for the decision of the court, whether evidence of the truth was admissible in the particular case ; and it was then for the jury to decide whether the publication was made for good motives and justifiable ends.^ § 102. Preliminary facts. Whether a witness is an atheist is a preliminary question for the decision of the judge alone.^ But now, by Gen. Sts. c. 131, § 12, evidence of the witness's disbelief in the existence of God goes only to his credibility. 1 C. V. Worcester, 3 Pick. 462 (1826). ' C. v. Barney, 10 Gush. 480 (1852). s C. V. Biggs, 14 Gray, 376 (1860). 6 c. v. Betton, 5 Gush. 427 (1850). 8 C. V. Davis, 11 Gray, 4 (1858). ' C. v. Blanding, 3 Pick. 304 (1825). * C. V. Galliga, 113 Mass. 203 (1873). ' C. v. Hills, 10 Gush. 530 (1852). Chap. VI.] JUDICIAL QUESTIONS. 83 So as to the alleged loss of a written instrument, preliminary to the introduction of secondary evidence of its contents ; and the judge's decision on the point is final.^ And so is the judge's decision as to a witness's competency to understand the obligation of an oath, provided it violate no legal prin- ciple.2 The admissibility of the testimony of experts is one of these questions. No rule of law fixes their qualifications or the requisite extent of their experience ; and the judge's rul- ing in such cases is not reversed unless it appear that there was no legally competent evidence to prove the expert's qualifications.^ But where the preliminary fact is also one of the material facts of the case, the judge's decision is provisional only, be- ing subject to the finding of the jury upon the whole case. Thus, whether certain evidence was sufficient, primd facie, to show that A., B., and the defendant were working together with a common purpose, so as to make A. and B.'s acts affect defendant, is properly decided in the first place by the judge; but its ultimate decision belongs to the jury when they make up their verdict.* So, on the question of the admissibility of the dying declarations of the deceased, whether the deceased really supposed himself dying the court must decide in the first instance, subject to the final finding as to this fact by the jury .5 (The language of the court in the subsequent case of C. v. Qoe, 115 Mass. 481 (1874), seems irreconcilable with these decisions. That was a prosecution for false pretences by means of a sham certificate of stock. To prove that the sig- nature to the certificate was in defendant's handwriting, the judge admitted in evidence, as a standard of comparison, the body of a note, partly printed, that had been delivered by defendant. Notwithstanding the objection that the body of the note was neither proved nor admitted to be in defendant's 1 C. V. Morrell, 99 Maas. 542 (1868). * C. v. Browne, 14 Gray, 419 (1860). 2 C. V. Mullins, 2 Allen, 295 (1861). 6 c. v. Roberts, 108 Mass. 296 (1871). 5 C.v. Williams, 105 Mass. 62 (1870) ; C. V. Sturtiyant, 117 Mass. 122 (1874). 84 OP CRIMINAL EVIDENCE IN GENERAL. [Past U. hand-writing, defendant's delivery of the note merely admit- ting the signature to be his, the Supreme Court affirmed the ruling, on the ground that the question was a preliminary one for the decision of the judge, and that " his decision of it was final." But the fact in question was obviously a material one in the case, which it belonged to the jury to finally pass upon.) Whether a defendant was drunk when he made a certain confession is also a preliminary question for the court (but subject, semble, to the final decision of the jury ; since the fact is material to the question of the weight to be attached to the confession), and the court is bound to admit all evi- dence offered tending to show defendant's condition shortly before or shortly after the confession.^ And the admissibility of evidence of defendant's silence when charged with the of- fence is also a preliminary question' of fact for the court.^ § 103. Idem sonans. The question of idem sonans is not for the court, but for the jury.^ (It involves merely a fact in the case not preliminary in its nature.) But if defendant omit to have this question submitted to the jury,. and it is de- cided by the court, the decision cannot be revised on appeal.* 1 O.K. Howe, 9 Gray, 110(1857). » C.k. Donovan, 13 Allen, 571 (1866). 3 C. ' he didn't owe over $300 ; " while the proof fixed 1 C.t). Int. L. 113 Mass. 208 (1873). 4 0. v. McKenney, 9 Gray, 114 2 C. V. Bulman, 118 Mass. 456 (1857). (1875). 6 c. V. Hussey, 111 Mass. 432 (1873). s C. V. Buck, 12 Met. 524 (1847), e c, «. Butland, 119 Mass. 317 (1875.) Chap. X.] TABIANCB. 101 the sum stated at $400, the variance was thought to be fatal.^' (If the proof had fixed the sum stated under $300, the dis- crepancy would not have operated to defendant's prejudice, and might therefore have been disregarded.) § 119. Variance as to names. This kind of variance is usually fatal. A charge of a sale of liquor to " George E. Allen " was held not sustained by proof of a sale to " George Allen," without evidence of identity ; and this after verdict ; ^ and a charge of injuring a building of " Nathan S. Hoard " was held unsustained by proof showing the building to belong to " Nathan Hoard." ^ But where a complaint charged a sale of liquor to " Andrew D. Rooney," who was proved to have been baptized as "Andrew Rooney," the variance was held immaterial, if Rooney had afterwards adopted another Chris- tian name by which he was well known in the community where he resided.* Forgery of a bank bill. It was held a fatal variance that the name of the State, though in the mar- gin of the bill, was omitted in the copy set forth ; this being part of the contract, as fixing the law governing it.^ (This was before St. 1864.) A sale of liquor to " Hemessey " was held not supported by proof of a sale to " Hennessey ; " the jury not finding that these two names usually sound alike.^ But in G. V. Jennings, 121 Mass. 47 (1876), the jury were held warranted in finding that " Gigger " is idem sonans with " Jiger " or " Jigr." A charge of a sale of liquor to a person " whose name is Mary Garland " was held not supported by proof of a sale to Mary Morrison, afterwards married to Gar- land. The averment of a name is taken to mean the one ex- isting at the time of the indictment.'' (The foregoing are clearly all cases of descriptive allegations.) But where the charge was an assault on " A. B., deputy sheriff," and the evidence showed that A. B. had been com- missioned deputy sheriff as " A. B., Juu.," this was held no 1 C. V. DaTidson, 1 Cush. .33 (1848). * C. v. Trainor, 123 Mass. 414 (1877). 2 C. V. Shearman, 11 Cush. 546 5 c. v. Wilson, 2 Gray, 70 (1854.) (1853). 6 c. V. Mehan, 11 Gray, 321 (1858). " C. !/. McAroy, 16 Gray, 235 (1860). ' C. v. Brown, 2 Gray, 258 (1854). 102 OF CRIMINAL EVIDENCE IN GENERAL. [Paet II. variance. It was sufficient to prove the person to be the same ; and after verdict, this proof will be presumed.^ (And " junior " is no part of a name.) The provision of Rev. Sts. c. 133, § 11 (Gen. Sts. c. 172, § 12), that, in offences affect- ing real estate, it shall be sufficient to prevent a variance that the owner named is so of any part of it, was held applicable to the ownership of an undivided part.^ Under the same statute, where the indictment charged the breaking and en- tering of the " house of J. S." on a certain day, though the evidence showed the house to have been unoccupied on the day alleged, it was held no variance, it being proved that J. S. was the general owner. ^ On a trial for the obstruction of a railroad, it was held that though the corporate name of a railroad company in such case be not correctly set forth, there will yet be no variance if it be proved that by the name alleged it had long been exercising the franchises of the cor- poration and managing the road.^ Trial for perjury com- m'itted in defendant's answers on an examination in the Pro- bate Court, on a charge of embezzling a deed to " Mary Holt ; " the indictment alleging that defendant falsely denied having seen it. The deed in evidence was to " Polly Holt ; " and it was proved that defendant knew that by " Polly Holt " was meant " Mary Holt." Held, that under St. 1864, c. 250, § 1, the variance was not fatal ; the identity of the deed being proved, and its purport being sufficiently described in the in- dictment to inform defendant what deed was meant.^ § 120. Variance in trials on appeal. In a trial on appeal the prosecution is not bound by the particulars furnished to defendant in the trial below. Where, on a trial in the appel- late court for keeping a liquor nuisance during a certain pe- riod, specific particulars had been furnished to defendant on the trial below, and the evidence on the appeal trial varied from these particulars, it was held that the variance might 1 C. n. Beckley, 3 Met. 330 (1841). * C. u. Bakeman, 105 Mass. 53 2 C. V. Harney, 10 Met. 422 (1845). (1870). s C. V. Reynolds, 122 Mass. 454 ^ C. v. Terry, 114 Mass. 263 (1873). (1877). Chap. X.] VARIANCE. 103 be disregarded, no specification having been given or moved for in the appellate court ; the trial in which is a trial de novo J- § 121. Miscellaneous cases. Generally, when the proof differs from the allegations of the indictment in any essential particular the variance will be fatal. A charge of larceny of printed sheets was held not supported by proof of a larceny of books ; the sheets having been bound by defendant himself be- fore he embezzled them.^ Where the charge was defendant's giving a false answer to town officers, in order to have his name put on the vote list and to obtain permission to vote, and it appeared that defendant's name was already on the vote list, it was held a fatal variance.^ Where the charge was a conspiracy to defraud a certain insurance company named by setting fire to a building, after first removing the furniture of the insured, it appearing that defendant did not know of the policy of this particular company until after the fire, the vari- ance was held fatal.* A charge of a sale of " spirituous and intoxicating liquors " was held not sustained by proof of a ' sale of liquors that were intoxicating, but not spirituous.^ A charge of the larceny of a certain number of bottles of whis- key is not sustained by proof of the larceny of the liquor, but not in bottles ; the averment being a matter of description, re- quiring to be strictly proved.^ A charge of stealing any ani- mal implies the animal to have been a live one ; so that such a charge is not supported by proof of the stealing of a dead one.'^ Where the charge was the sale of liquors " without being duly licensed as an innholder," but the evidence showed defendant to have a qualified license as such, the variance was held fatal.^ Where a defendant is charged with procur- ing an offence to be committed by " persons unknown," if it be shown that these persons were in fact known to the grand jury when the indictment was found, there will be a fatal variance.^ 1 C. V. Farrell, 105 Mass. 189 (1870). 6 fj. „. Gavin, 121 Mass. .M (1876). 2 C. u. Merrifield, 4 Met. 468 (1842). ^ C. v. Seaman, 8 Gray, 497 (1B57). 3 C. V. Shaw, 7 Met. 52 (1843). s c. v. Thayer, 5 Met. 246 (1842). * C. V. Kellogg, 7 Cnsh. 473 (1851). ^ C. v. GloTer, 111 Mass. 395 (1873). 5 C. V. Livermore, 4 Gray, 18 (1855). 104 OF CRIMINAL EVIDENCE IN GENERAL. [Pakt IL But a variance that is not substantial will not be fatal ; as where the charge was the saturating of a potato with poison to be administered to a horse ; and the proof was that a hole was simply made in the potato, which was filled with bran saturated with poison.^ So, on the trial of a charge under Gen. Sts. c. 161, § 85, for maliciously "injuring" personal, property, it was held there was no variance, though the proof showed that the property was so injured as to be virtually destroyed.^ 1 C. V. McLaughlin, 105 Mass. 460 2 q_ ^, Sullivan, 107 Mass. 218 (1870). (1871). CHAPTER XI. HAKDWEITING. ACCOMPLICES. DEFENDANT'S GENEEAL CHAKACTER. § 122. Handwriting. Comparison of hands is admissible in Massachusetts as proof of a party's handwriting. But the writing used as a standard of comparison must have been proved or admitted to have been written by the party's own hand. A press copy is not sufficient.^ 0. V. Ooe, 115 Mass. 481 (1874), was a prosecution for false pretences by means of a sham certificate of stock. To prove that the signature to the certificate was in defendant's hand- writing, the court below admitted in evidence as a standard comparison the writing in the body of a note, partly printed, that had been given by defendant. It was objected that there was no proof that the writing in the body of the note was in defendant's hand, and that his delivery of the note merely admitted the signature to be his. But the Supreme Court affirmed this ruling, on the ground that the fact that the body of the note was in defendant's hand might have been inferred from circumstances, and that " unreported occurrences at the trial might have strengthened this inference." (This decision seems to be a wide departure from the rule. For that certainty of proof the law requires in respect to the standard of comparison, the appellate court substituted the possibility of there having been circumstances from which the fact might have been inferred. A further ground stated for this extraordinary decision was that the ruling of the trial judge, being on a preliminary ques- tion of fact, was final. But this was clearly erroneous. The 1 C. V. Eastman, 1 Cush. 189 (1848) ; C. v. Whitman, 121 Mass. 361 (1876). 106 OF CRIMINAL EVIDENCE IN GENERAL. [Part II. fact in question was a material one in the case, upon which the jury would have to pass in making up their verdict, and to hold the judge's decision of it to be final was to arrogate to the court the functions of the jury.) § 123. Special cases. An expert may say whether certain letters written in a disguised hand to divert suspicion from the defendant were written by the defendant himself, and may give his • reasons for his opinion. But he cannot be asked if certain marks that could not be made with a pen were made with a peculiar instrument in defendant's posses- sion. ^ (This was beyond the scope of an expert's skill in handwriting.) In a trial for perjury, the magistrate's certifi- cate of defendant's oath may be proved by evidence of his handwriting, the magistrate being dead.^ § 124. Testimony of accomplices. The general rule as to the testimony of accomplices is that defendant may be convicted on it alone, if the jury are convinced of defend- ant's guilt beyond a reasonable doubt ; but that if there be no other evidence against defendant the jury is always in- structed to acquit. In other words, their testimony should be corroborated on some material point.^ On a trial for receiving stolen goods, it was held that defendant's guilty knowledge might be found by the jury on the testimony of an accomplice, corroborated by proof from other sources of defendant's possession of the goods, whether such possession had been stated by the accomplice or not.* In a prosecution for an abortion, the woman is not technically an accomplice ; so that the rule as to accomplices is not applicable to her testimony.^ Even if she procure the abortion to be performed this does not make her an accomplice, since she is not indict- able as perpetrator. But, considering her connection with the act, the judge may properly caution the jury to scrutinize her statements with peculiar care.^ 1 C. V. Webster, 5 Cash. 295 (1850). * C. v. Savory, 10 Cush. 535 (1852). 2 C. V. Warden, 11 Met. 406 (1846). ^ c. v. Woods, 11 Gray, 85 (1858). 3 C. u.Bosworth,22Piek.397(1839); ' C. v. Boynton, 116 Mass. 343 C. V. Price, 10 Gray, 472 (1858). (1874). Chap. XI.] ACCOMPLICES. 107 § 125. The corroboration must be as to some fact material to the issue, and connecting defendant with the commission of the offence.^ It need not be of the whole transaction. It is enough if it be on some material fact tending clearly to show defendant's commission of the ofEence, or defendant's own statements respecting it.^ And proof of defendant's saying that the accomplice " had nothing to do with it," is sufficient corroboration, as showing that defendant knew who was con- cerned in the crime, and thus tending to show his own par- ticipation in it.^ And so is defendant's assent to the confes- sion of an accomplice given in evidence.* Falsus in uno^f al- ius in omnibus, is not an absolute rule of law, even as to the testimony of accomplices, so as to require its rejection except as to the facts corroborated.^ On a trial for robbery, an ac- complice had sworn that he was to report to the defendant Dunlap at Wilkesbarre, Pennsylvania, and did so, and that Dunlap was to take the name of "R. C. Hill." The prose- cution then offered the register of the hotel at Wilkesbarre showing the witness's own signature and also that of Dunlap as " R. C. Hill," as assigned to room No. 27, in which wit- ness visited Dunlap and conferred with him about the in- tended robbery. This evidence was objected to on the ground that the signature of the accomplice merely corroborated his evidence of his own act ; but it was held competent, at least as fixing the time when the interview took place.^ In the same case, the defence asked the court to charge that the corroboration required was not of what related to the witness's own acts and declarations, but of what connected the defendants with the robbery. It was held that this re- quest was properly refused, there being, in fact, corroborative evidence connecting defendants with the commission of the offence. The court went on to say : — "In Commonwealth v. Bosworth, 22 Pick. 397, the court 1 C. V. Boswortli«22 Pick. 397 (1839) ; * C. u. Call, 21 Pick. 515 (1839). C. V. Brooks, 9 Gray, 299 (1857). 6 c. „. Billings, 97 Mass. 405 (1867). 2 C. V. Larrabee, 99 Mass. 413 (1868). 6 c. v. Scott, 123 Mass. 222 (1877). 8 C. V. O'Brien, 12 Allen, 183 (1866). 108 OP CRIMINAL BVIBENCE IN GBNBKAL. [Paet II. say, as to tfie kind of corroboration required : ' It is perfectly- clear that it need not extend to the whole testimony ; but, it being shown that the accomplice has testified truly in some particulars, the jury may infer that he has in others. But what amounts to corroboration ? We think the rule is, that the corroborative evidence must relate to some portion of the testimony which is material to the issue.' In that case the evidence, held to be competent as corroborative, confirmed the accomplice as to a fact which did not tend to connect the de- fendant with the crime. Since this decision it has been usual to instruct the jury in substantial compliance with the rule stated therein, though the practice of different judges in the exercise of their discretion has varied. Commonwealth v. Brooks, 9 Gray, 299 ; Oommonwealth v. Price, 10 Gray, 472 ; Commonwealth v. O'Brien, 12 Allen, 183 ; Commonwealth v. Larrahee, 99 Mass. 413 ; Commonwealth v. Elliot, 110 Mass. 104 ; Commonwealth v. Snow, 111 Mass. 411. See also Begina v. 8tubbs, Dearsly, 555 ; S. C.l Cox C. C. 48 ; State V. Wolcott, 21 Conn. 272. " In the case at bar, there being corroborative evidence, the presiding justice was not called upon to advise the jury to ac- quit, but was required to submit the case to them ; and we are of opinion that the instruction given, which called the attention of the jury to the suspicious character of the testi- mony of the accomplice, and advised them, in substance, that it was not safe to convict unless his testimony was corrobo- rated in sonie portion which was material to the issue, is not open to exception by the defendants." § 126. Miscellaneous points. Whether the witness is an accomplice or not is a question for the jury ;^ and this need not be proved beyond reasonable doubt.^ Notwithstanding Gen. Sts. c. 115, § 5, the court may charge the jury as to the weight of the testimony of accomplices, they being a whole class of witnesses; and defendant may except if the judge charges that an accomplice has been corroborated by evidence 1 C. V. Elliot, no Mass. 104 (1872) ; '^C.v. Ford, 111 Mass. 394 (1873). C. V. Glover, 111 Mass. 395 (1873). Chap. XI.] DEFENDANT'S GENERAL CHAKACTBE. 109 that does not legally corroborate.^ In joint offences, the dec- larations of one of several engaged in the joint enterprise and in the course of its execution are admissible against all.^ But a subsequent confession by one of two jointly indicted, impli- cating both of them, though admissible in evidence, is compe- tent only as against the one confessing ; and the court must so instruct the jury.^ An accomplice who has already testi- fied to facts criminating both defendant and himself cannot refuse to answer other questions, on the ground that the an- swers would tend to criminate him.* § 127. Evidence of defendant's general character. On a capital trial, as well as in other cases, defendant may give evidence of his general character, which jnay be contradicted by the prosecution. But the prosecution can in no case give evidence of it until defendant himself has put it in issue.^ In a trial for murder, though this evidence is competent, it is obviously of less weight than in offences of a lower grade.^ In a V. Saeket, 22 Pick. 394 (1839), it was held that where defendant has given evidence of his good character anterior to the commission of the offence, the prosecution may reply by evidence of his bad character after it. (But semble, such evidence would not be relevant ; the point in issue being de- fendant's character at the time of his alleged commission of the offence, as bearing upon the probability of his having committed it.) On a trial for the breach of a city by-law, prohibiting the trotting or galloping of wagons through the streets, evidence of defendant's general character as a careful driver is inadmissible.''^ § 128. Particular facts. After evidence of defendant's character or reputation being good, the prosecution cannot rebut by proof of particular facts. Because, first, this would lead to collateral issues ; and secondly, defendant could not be expected to be prepared to meet such issues. But it \^as 1 C. V. Larrabee, 99 Mass. 413 * C. v. Price, 10 Gray, 472 (1858). (1868). 6 c. V. Hardy, 2 Mass. 317 (1807). 2 C. V. Tivnon, 8 Gray, 375 (1857). « C. v. Webster, 5 Gush. 295 (1850). ' C. V. Ingraham, 7 Gray, 46 (1856). ' C. v. Worcester, 3 Pick. 462 (1826). 110 OP CRIMINAL EVIDBSrCB IN GENERAL. [Paet J] held that on cross-examination of defendant's witness on this point, the prosecution might ask him if he had ever heard o: certain facts.^ (But would not this enable the prosecution tc prejudice defendant's case with the jury by questions suggest ing the existence of purely supposititious facts ?) 1 C. !/. O'Brien, 119 Mass. 342 (1875). CHAPTER XII. CONFESSIONS. § 129. Their effect. A defendant's solemn confession of his crime in open court is in all cases sufficient for his convic- tion. Those treated of in this chapter are confessions made in pais ; that is, out of court. Whether a defendant may be convicted on his confession alone is a point on which the same doctrine seems not always to have prevailed. In 0. V. Stevens, 10 Mass. 181 (1813), the defendant was on trial for altering a draft payable to his own order. It was held that defendant's confession that another person had made the alteration with defendant's assent sufficed alone for con- viction ; on the ground that, in misdemeanor, all persons pres- ent consenting and aiding are deemed principals. In 0. V. Tarr, 4 Allen, 315 (1862), it was held that the offence charged was provable by defendant's confession, cor- roborated by circumstances ; and that, there being such cir- cumstances in the case, the judge was justified in refusing to instruct the jury that defendant could not be convicted on his confession alone. In a V. McCann, 97 Mass. 580 (1867), it was held that, there being some evidence besides defendant's confession, the judge was not bound to instruct the jury not to convict on defendant's uncorroborated confession. In C. V. Sanborn, 116 Mass. 61 (1874), it was laid down that a judge is not bound to instruct the jury that no sub- stantial reliance is to be placed on confessions not corrobo- ated by other evidence ; this depending upon the circum- stances of the case to be weighed by the jury. 112 OF CRIMINAL EVIDENCE IN GENERAL. [Pakt n. Finally, in G. v. Smith, 119 Mass. 305 (1876), it was held that the jury may conTict on defendant's confession alone, if the corpus delicti be proved. So that the doctrine is now held without qualification, that a defendant may be convicted on his uncorroborated confession. But defendant's admission of any fact, even if made in open court, does not operate to shut out any other evidence the prosecution may choose to give. Thus where, in a trial for the forgery of three notes, the prosecution offered thirty other notes uttered by defendant about the same time, and which were so made on one pattern as to tend to show that they were made by tracing, there being evidence tending to show that the three notes in question had been forged by tracing, the evidence was held competent; although defendant, in order to prevent its admission, admitted he had passed the three notes, and that if they were forged, he knew them to be so.^ Defendant may disprove by evidence any or aU of the facts confessed by him.^ § 130. Confessions affect only the party making them. If two be tried jointly, the confession of one of them implicat- ing both is admissible, but is competent only against the one confessing ; and the court is bound so to instruct the jury.^ Thus, if A. and B. are jointly tried for adultery, A.'s declara- tion of B.'s being a married woman cannot be used against her.* So, on the trial of a receiver of stolen goods, the con- viction of the thief upon his own confession is no evidence of the stealing as against the receiver indicted alone.® So, where A. and B. are jointly tried for adultery with each other, neither of them can be convicted on A.'s confession of the act at one time, and on B.'s confession of the act at another time.^ § 131. Implied confessions. When statements of defend- iC.t). Miller, 3 Cush. 343 (1849). * C. u. Thompson, 99 Mass. 444 2 C. V. Howe, 9 Gray, 110 (1857) ; C. (1868). t). Howe, 2 Allen, 153 (1861). ^ c. „. Elisha, 3 Gray, 460 (1854). » C. V. Ingraham, 7 Gray, 46 (1856). " C. y. Cobb, 14 Gray, 57 (1859). Chap. XII.] CONFESSIONS. 113 ant's guilt are made in his hearing, and to which, if inno- cent, he would naturally reply, his silence is admissible in ev- idence against him.^ Thus, the confession of an accomplice in defendant's presence and apparently assented to by him is admissible against defendant, for it called upon him to speak.^ But defendant's silence will be held to be an admission only when the circumstances are such as to show there was apparently no reason or motive for his omitting to speak.^ Thus where, after defendant's arrest for larceny, the owner of the goods stolen came to the watch-house where defendant was confined, and, in speaking to the police officer in charge, accused defendant of being the thief, the defendant making no reply, the evidence was held inadmissible ; the circum- stances resembling somewhat a judicial proceeding, and de- fendant may have thought he had then no right to reply.* So, statements made by a third person to an officer of the law, in defendant's hearing in his cell, though not contradicted by him, were held inadmissible.^ And defendant's silence on a statement of his guilt being made in his hearing while in confinement cannot be used as an admission ; and whether such silence amounted to an admission is not a question for the jury.^ § 132. Confessions induced by promises or by threats are not admissible.^ Thus, where defendant had asked an officer's advice in relation to his pleading guilty on the trial, and the officer told him he did not wish to advise, but added, " as a general thing it was better for a man who was guilty to plead guilty, for he gets a lighter sentence ; " it was held that a confession made to the officer after this advice was in- admissible.^ So, evidence was held inadmissible of defend- ant's confession to an officer who had promised the day before 1 C. V. Galavan, 9 Allen, 271 (1864). 6 c. „. McDermott, 123 Mass. 440 2 C. u. Call, 21 Pick. 515 (1839). (1877). 2 C. V. Harvey, 1 Gray, 487 (1854). t c. v. Chubbock, 1 Mass. 144 (1804). < C. ... Kenney, 12 Met. 235 (1847). » q_ „_ Cm-tig^ 97 M^gg 574 (ige?). s C. o. Walker, 13 Allen, 570 (1866). 114 OP CRIMINAL EVIDENCE IN GENERAL. [Pabt II. to use his influence " to have it go in his favor ; " and though the jury had been charged to disregard the confession if they thought it had been induced by the promise, the conviction was reversed.^ The admissibility of a confession after hopes excited depends on the special circumstances of the case.^ Where defendant had confessed, on condition that his employer would take him back and would reveal nothing to hurt him, it was queried whether the confession would be admissible.^ But where the confession does not appear to have been in- duced by any promise, it is admissible. Thus, where defend- ant was arrested by oflScers A. and B., and A. told him he had better confess to B., who was then not within hearing, but defendant refused to do so, and next morning B. informed defendant that the stolen goods had been found ; it was held that the confession then made to B. was admissible.* And defendant's declarations, while under arrest, are admissible in the absence of any threats or inducement held out.^ Where defendant bad voluntarily offered to plead guilty, " if he could get off with a fine," and asked the ofiicer's advice, who declined to give any, evidence of the offer was held admis- sible ; though it was argued for defendant that even if he had made an admission of guilt on that condition, it would not have been admissible ; and a fortiori his mere offer to ad- mit was not sufficient.^ Threats or promises from one officer were held to afford no presumption of their influence continu- ing until confession afterwards made to another officer.^ But in a subsequent case, where an inducement had been held out by one officer and next day defendant confessed to another, which confession was admitted in evidence, the jury were in- structed to reject it if they thought it had been made under the influence of the inducement held out the day before.* In C. V. Tuckerman, 10 Gray, 173 (1857), a certain conversa- tion between defendant and a director of the company em- IC. ».. Taylor, 5 Cuah. 605 (1850). « C. v. Callahan, 108 Mass. 421 a C. V. Morey, 1 Gray, 461 (1854). (1871). • C. u. Howe, 2 Allen, 153 (1861). ' C. v. Cu&ce, 108 Mass. 285 (1871). * C. V. Crocker, 108 Mass. 464 (1871). » C. v. CuUen, 111 Mass. 435 (1873). » C. V. Holt, 121 Mass. 61 (1876). Chap. XII.] CONFESSIONS. 115 bezzled from was held not to be such as to exclude defend- ant's confessions on the ground of undue influence. In 0. v. Knapp, 9 Pick. 496 (1830), certain confessions were held to have been made under the hope of favor held out ; but this appearing to have had no influence on defendant, they were allowed to be proved. Where a defendant's reply to a state- ment made in his presence partially admitted the truth, both statement and reply were held competent ; and none the less so that the defendant was in arrest at the time and had been brought by an officer to the witnesses' presence.-^ § 133. Threats. A confession of murder was admitted un- der the following circumstances. Defendant, a colored boy, had been arrested without warrant by two police officers, who had searched him and stripped him of his clothing, put him in a cell, taken him out late at night and questioned him for two hours, without warning him of his right not to answer, and without allowing him to consult friends or counsel. The confession he then made to the two officers was held admis- sible against him, on the ground that no threat or promise had been used.^ (But this violent and brutal treatment of the boy to extort a confession was something more than a threat. The principle of this decision would admit a confes- sion extorted by the Spanish Inquisition, where no threat- ening words have been used. So palpable a sacrifice of the spirit of a law to its letter has rarely disgraced a civilized tribu- nal.) Defendant had been arrested by a constable, who asked him if the young girl he was charged with having assaulted had been there; to which defendant answered " No ; " the constable intimating that this was a lie, defendant then ad- mitted the girl had been there. The admission was held competent, nothing in the nature of a threat having been used.2 Mere fear, in the absence of threats or promises, is not sufficient to exclude a party's confessions ; but threats and inducements may be by acts as well as words.* § 134. Special cases. A confession to a fellow church- 1 C. V. Brown, 121 Mass. 69 (1876). » C.D.Mitchell, 117 Mass. 431 (1875). 2 C. a. Cuffee, 108 Mass. 285 (1871). ' C. v. Smith, 119 Mass. 305 (1876). 116 OF CKIMINAL EVIDENCE IN GENERAL. [Pakt II. member is admissible.^ The testimony of a witness before the fire inquest, taken down under the statute, and signed by him, is admissible against him, though he had not been cau- tioned that he need not criminate himself.^ The fact that defendant's examination was taken in writing before the cor- oner does not exclude his oral confessions at other times. ^ Evidence is admissible against defendant of his statements in testifying on a former trial of the same case.* On a trial for being a common seller of liquors, sales were proved in a cer- tain house. To show defendant to be the owner and occu- pier of it, evidence was held admissible of a statement made by him a year before that he was repairing it.^ And on a trial for keeping a liquor nuisance, under Gen. Sts. c. 87, § 6, defendant's saying he was going to sell was held admissible against him, in connection with proof of barrels having been taken to the place in question, though with no marks or stamps upon them.^ A confession to an officer is admissible, though defendant had no counsel at the time.^ Defendant being under arrest for larceny, handed to a police officer a telegram just received by him, requesting him to read it aloud ; which the officer did. The telegram tended to contra- dict defendant's statement when arrested. After some hesi- tation defendant denied all knowledge of the telegram, or of the writer. The telegram was held admissible against de- fendant, if offered merely to explain the conversation of which it was a part.^ (Its contents were clearly not evidence against him). A plea in bar of a United States license to sell liquors, which has been overruled, is not evidence against defendant under the general issue.^ Where a defend- ant's confession had been excluded, it was held that the wit- ness, an officer, might nevertheless be asked if defendant said anything about a hatchet, and whether witness went there- 1 C. ■/. Drake, 15 Mass. 161 (1818). o C. K.Davenport, 2 AUeii,299 (1861). 2 C. u. King, 8 Gray, 501 (1857). ' C. v. Sturtivant, 117 Mass. 122 s C. V. Dower, 4 Allen, 297 (1862). (1874). *C.w. Reynolds, 122 Mass. 454 (1877). « C.t). Vosburg, 112 Mass. 419 (1873). » C. V. Hildreth, U Gray, 327 (1858). ^ C. v. Lannan, 13 Allen, 563 (1866). Chap. XII.] CONFESSIONS. 117 upon to a certain place and found one.^ (But this ruling seems not sustainable ; for the sole object of the question was to prove inferentially the very confession that had just been excluded.) § 135. Miscellaneous points. Where defendant's confes- sion is inadmissible, his conduct and declarations may never- theless be shown as independent evidence of guilt.^ Though a confession be ruled out, the fact may be otherwise proved.' If a confession be admitted at all, the whole of it must be re- ceived. No part of it can be rejected.* There is no rule of law that the jury must receive with special caution evidence of defendant's admissions if not confirmed by witnesses for the prosecution who stood by, and were in a position to hear them, if made.^ A defendant's confession is not secondary evidence, nor excludible as such in a case of larceny, because the owner of the property stolen is not examined.® § 136. The admissibility is a preliminary question for the court, which decides provisionally the questions of fact involved, subject, in proper cases, to the finding of the jury thereupon ; ^ as, whether defendant was drunk when he made the confession.^ (But if the confession in such a case be ad- mitted, the ultimate determination of defendant's condition when he made it plainly belongs to the jury ; it being a material fact in the case, on which the proof of defendant's guilt must partly or exclusively rest.) Where the question is whether defendant's confession was from fear of personal injury or hope of personal benefit held out by one in author- ity, the judge's ruling cannot be revised on appeal, unless it it involve some principle of law, or unless the whole evidence be reported to the appellate court for their decision on its sufficiency. In a case of doubt, the judge will submit the question to the jury with proper instructions.^ On the pre- liminai-y question whether a confession was admissible in evi- 1 C. V. James, 99 Mass. 438 (1868). « C. v. Kenney, 12 Met. 235 (1847). 2 C. u. Piper, 120 Mass. 185 (1876). ' Ibid. 3 C V. Knapp, 9 Pick. 496 (1830). s c. v. Howe, 9 Gray, 110 (1857). * C. V. Cobb, 14 Gray, 57 (1859). 9 c. „. Piper, 120 Mass. 185 (1876). ' C. V. Galligan, 1 13 Mass. 202 (1873). 118 OF OEIMIKAL EVIDENCE IN GENERAL. [Part 11. dence, it was held that no valid exception could be taken to the judge's allowing the prosecution to examine, and refusing to allow defendant to cross-examine ; it not appearing that defendant's right to cross-examine was abridged when the evi- dence was offered to the jury.^ 1 C, 0. Morrell, 99 Mass. 542 (1868). PART THIRD. OF PARTICULAR OFFENCES, AND OF THE PLEAD- INGS AND EVIDENCE THEREIN. PRELIMINARY CHAPTER. PELONT. INSANITY. DETINKENNESS. HUSBAND AND WIFE. § 137. Felony. The common law distinction between fel- onies and misdemeanors was abrogated by St. 1852, c. 37 § 1 (Gen. Sts. c. 168, § 1), which enacts that " any crime pun- ishable by death or imprisonment in the state prison is a fel- ony ; and no other crime shall be so considered." In Q. T. Pease, 16 Mass. 91 (1819), it was held that ac- cepting a promissory note from a thief was a compounding of felony. § 138. Insanity constitutes no valid defence for crime, if the offender had reason enough to distinguish right from wrong, and to understand the nature, character, and conse- quences of the act, and mental power enough to apply it to his own case. But it would be a good defence that the act was done under an illusion as to the existence of a fact which, if existing, would have rendered the act justifiable. And so, if the act was committed under an uncontrollable impulse, the result of mental disease.^ § 139. What evidence of it admissible. The opinion of experts, who have attended the trial and heard the testimony, 1 C. i;. Rogers, 7 Met. 500 (1844). 120 OF PAETICUIiAR OFFENCES. [Part III. is competent as to defendant's sanity, though they have never examined the defendant personally.^ But books on the sub- ject by physicians or by lawyers, or by statisticians of insan- ity, as stated by the court in another case, are inadmissible.^ And a physician who has not made mental disease a special study cannot be asked, as an expert, his opinion on a hypo- thetical case ; nor as a physician, as to whether a person he knew well, but who had never been his patient, was compe- tent to apply the rules of right and wrong when under high excitement.^ In Q. Y. 'Wilson, 1 Gray, 337 (1854), and in 0. v. Fairlanks, 2 Allen, 511 (1861), it was held that a witness on this point, if not an expert, can state only facts, and not his opinion on them ; the case of witnesses to a will being, as was said, the only recognized exception to the general rule. (But a doubt may be suggested as to the propriety of excluding the opinion of non-expert witnesses as to a defendant's sanity. Is not a man's sanity one of those facts on which all men are more or less competent to form an opinion ? The case seems to be- long to that class of exceptions which is based on the general and indefinite nature of the inquirj;^, and the difficulty of ad- ducing direct proof of a mere mental condition ; such, for in- stance, as the imbecility of age, or feelings of love or of aversion.) ' § 140. What evidence of it is suflBcient. The law pre- sumes a person of full age to be sane and morally responsi- ble;* and this legal presumption of sanity suffices for the prosecution until rebutted by preponderating evidence of in- sanity ; and after evidence of defendant's insanity, the prose- cution may rebut by evidence of his sanity.^ If merely the preponderance of evidence be in favor of insanity, this will justify an acquittal.^ § 141. Drunkenness is no justification or excuse for crime or extenuation of it.^ (This rule is supportable only on the 1 C. V. Eogers, 7 Met. 500 (1844). 5 c. v. Eddy, 7 Gray, 583 (1856). 2 C. V. "Wilson, 1 Gray, 337 (1854). « C. v. Eogers, 7 Met. 500 (1844). 8 C. V. Eich, 14 Gray, 335 (1859). ' C. v. Malone, 114 Mass. 295 (1873). * C. V. Heath, 11 Gray, 303 (1858). HUSBAND AND WIFE. 121 ground of public policy ; in view of the dangers and abuses that would result from a contrary rule.) § 142. Husband and wife. Liability of the wife. A wife is not punishable for an offence committed by her under compulsion of her husband, except in heinous cases. Thus, she cannot commit larceny jointly with her husband ; and is not punishable for an assault committted by her in company with him, or by his command ; ^ nor for the sale of liquors, if her husband was near enough to exercise control over her, though not in the same room ; ^ nor even in his absence, if she can prove she was acting under his compulsion.^ (But this last proposition is apparently overruled by C. v. Welch, 97 Mass. 593 (1867), to be cited presently.) As another consequence of the marital relation, it was held that a wife, stealing in her husband's house, was not liable for larceny "in any building," under St. 1851, c. 156, § 4 ; these words being construed not to apply to stealing in one's own house ; and the husband's house being, in view of the law, the wife's also.* In C. v. Trimmer, 1 Mass. 476 (1805), it was held that a wife could not be jointly indicted with her hus- band for breaking and entering ; but this decision was over- ruled in C. V. Murphy, 2 Gray, 510 (1854), where it was ruled that a wife may be jointly indicted with her husband ; though whether she shall be convicted or not depends upon the evidence. § 143. Presumption of coercion. On the trial of a wife for an assault, the judge was held bound to inform the jury of the legal presumption that a wife's offence committed in her husband's presence was by his coercion, though this presump- tion is rebuttable by evidence.^ The presumption does not exist when the offence was committed in the husband's ab- sence.^ But the husband need not be literally present and in sight of his wife. If he was on the premises and near by, a momentary absence from the room might still leave her 1 C. V. Neal, 10 Mass. 152 (1813). 1 C. v. Hartnett, 3 Gray, 450 (1854). 2 C. V. Bulk, 11 Gray, 437 (1858). 6 Q. „. Eagan, 103 Mass. 71 (1869). s C. V. Murphy, 2 Gray, 510 (1854). 6 G. v. Butler, 1 Allen, 4 (1861). 122 OF PARTIOULAB, OFFENCES. [Part HI. under his influence.^ The legal presumption as to coercion has not been affected by Gen. Sts. c. 108, § 3.^ On the other hand, a wife is not deemed to be acting under her husband's control when he is absent.^ So a wife is punishable for selling liquor provided by her husband for the purpose, when he was not present.* So, a husband and wife are jointly punishable for keeping a liquor nuisance, it being proved that she made sales in his absence.^ So, under St. 1855, c. 215, § 17, a wife is liable for the sale of liquor as her husband's agent, by delivering it under his contract with the buyer.^ Again : a wife is punishable for keeping a house of ill-fame ; this offence being usually her own personal one, rather than her husband's ; "^ and she may be even indicted alone for this offence, though her husband live with her in a house hired, furnished, and supplied by him.^ § 144. Husband's liability for acts of his wife. A hus- band was held to be properly convicted of keeping a tene- ment for the illegal sale and keeping of liquors, though hav- ing no ownership or interest in the profits ; the premises being held under a deed to defendant and his wife jointly ; both being thus seised of the entirety, and the husband being entitled during coverture to the rents and profits.^ On a trial for keeping a tenement for the sale of liquors, the defence was that it was kept by defendant's wife, who had filed a married woman's certificate under St. 1862, c. 198, for car- rying on business on her own account, and had taken out a United States license as liquor dealer in her own name. But it was held that defendant was liable, though he had no agency in the sales, and had forbade the wife to make them ; he knowing of them, and using no efficient means to prevent them ; that notwithstanding the statute as to married wom- en , he had power to control his own home and to prevent its 1 C. V. Munsey, 112 Mass. 287 (1873). 6 c. v. Whalen, 16 Gray, 25 (1860). 2 C. V. Gannon, 97 Mass. .547 (18^7). ' C. v. Lewis, 1 Met. 151 (1840). 8 C. V. Freney, 13 Allen, 560 (1866). 8 c. v. Cheney, 114 Mass. 281 (1873). * G. w. Welch, 97 Mass. 593 (1867). ^ C. u. Kennedy, 119 Mass. 211 ' C. V. Tryon, 99 Mass. 442 (1868). (1875). HUSBAND AND WIFE. 123 being used for an illegal purpose ; and he not having done so, the law deemed him a participator in the offence.^ § 145. How affected by each other's acts and declara- tions. On the trial of a wife for larceny, evidence of her husband's having deposited money to procure the absence of a witness for the prosecution is inadmissible against her unless she be shown to have been privy to it.^ Where husband and wife are tried jointly for receiving stolen goods, the wife's declarations are good against herself, but not against her hus- band.^ Evidence of defendant's wife being on the premises where the liquor was sold is admissible to show defendant's possession and control;* and where defendant's wife sells liquor in his presence and with his knowledge, this is primd facie evidence of her selling as his agent.^ (It was said in this case that this inference may be rebutted by evidence. This seems inconsistent with the decision in the later case of 0. V. Barry, 115 Mass. 146, cited above, in § 142, where a husband was held criminally liable for a similar offence in his own household, though -committed without his consent and against his orders ; unless, indeed, there be a valid distinc- tion between sales of liquor and keeping a tenement for such sales.) Sales of liquor in defendant's house during his ab- sence are admissible in evidence against him.^ On a trial for keeping a liquor nuisance, evidence that defendant's wife sold liquor at the place is proof that he kept it ; and evidence of his cohabitation with her there is evidence of the marital relation.'^ § 146. Their testimony as affecting each other. Gener- ally, their testimony for or against each other is inadmissible ; so that where several are jointly tried under a joint indict- ment, the wife of one of the defendants is an incompetent wit- ness for either of them. In such a case, a separate trial should be moved for.^ So, a husband is an incompetent wit- ness to prove defendant's adultery with his wife. Neither iC.u. Barry, 115 Mass. 146 (1874); ^ C. v. Van Stone, 97 Mass. 549 C. V. Kennedy, 119 Mass. 211 (1875). (1867). 2 C. V. Bobbins, 3 Pick. 63 (1825). 6 C. v. Coughlin, 14 Gray, 389 (1860). 8 C. c. Briggs, 5 Pick. 429 (1827). ' C. v. Hurley, 14 Gray, 411 (I860). * G. V. Hogan, 11 Gray, 315 (1858). 8 c. v. Eastland, 1 Mass. 15 (1804). 124 OF PAKTICULAR OFFENCES. [Pakt III. can testify to the commission of a criminal act by the other.^ But where a husband is on trial for an assault on his wife, she is a competent witness against him ; and being competent as a witness against him, she would be equally competent for him.^ Though a private conversation between them is not permitted to be proved by either, evidence of it may be given by a third person who was a concealed listener, they suppos- ing themselves not to be overheard.^ . § 147. Miscellaneous points. Under Gen. Sts. c. 172, § 12, a charge of larceny of money of the husband is sustained by proof that the money was in the wife's actual possession.* In an indictment against A., " wife of B.," these words are only of addition or description, and need not be proved on a plea of not guilty. The objection can be taken only by a plea in abatement.^ In C. V. Jones, 121 Mass. 57 (1876), under Gen. Sts. c. 160, § 28, defendant was charged with maliciously threaten- ing A. B. to accuse him of crime ; and the proof was that de- fendant charged A. B. with committing an indecent assault on his wife, and threatened to prosecute him unless he was paid $75 in satisfaction. It was held* that defendant might give in evidence the truth of the charge by the testimony of his wife, as tending to prove it was not made maliciously ; as defendant, in such case, might have lawfully demanded rep- aration. 1 C. V. Sparks, 7 Allen, 534 (1863). < C. v. McLaughlin, 103 Mass. 435 2 C. u. Murphy, 4 Allen, 491 (1862). (1869). s C. V. Griffin, 110 Mass. 181 (1872). ^ c. u^ Lewis, 1 Met 151 (1840). CHAPTER I. ABORTION. {Gen. Sts. c. 165, §§ 9, 10.) § 148. The Offence. At common law, it is not an offence to produce an abortion with the woman's consent, if, though pregnant, she be not quick with child ;i but under St. 1845, c. 27 (Gen. Sts. c. 165, § 9), the woman's consent is no de- fence ; and it need not be proved that the patient was quick. But no crime, it seems, is committed, if the foetus had lost vitality before the abortion.^ And under that statute it was no offence for defendant to thrust his hand into the womb after delivery, though the umbilical cord was still unsevered and the placenta nnremoved ; for pregnancy ceases on the re- moval of the child.^ Under that statute any base or wicked motive was sufficient pVoof of malice.* § 149. The Indictment. At common law, the indictment must allege that the woman was quick, and that abortion en- sued ; 5 but under St. 1845, c. 27 (Gen. Sts. c. 165, § 9), it need not allege that the woman was quick, or that the child was alive, or that it was brought fortii prematurely ; nor who the woman was, nor whether she died in consequence of de- fendant's acts, nor that defendant " used " the instrument, if the fact of its use be already stated.^ Under the same statute, abortion by instruments and by drugs may be charged in the same count without duplicity, and proof of either is sufficient to convict. An averment that defendant thrust his hand into the womb after delivery, this not being an offence under this statute, may be rejected as 1 C. u. Parker, 9 Met. 263 (1845). * C. v. Wood, U Gray, 85 (1858). 2 C. u.,Wood, 11 Gray, 85 (1858). 6 c. y. Bangs, 9 Mass. 387 (1812). s C. V. Brown, 14 Gray, 419 (1860). « C. v. Wood, U Gray, 85 (1858). 126 OP PARTICULAR OFFENCES. [Pakt III. surplusage.^ In this case, certain statements, taken together, were held to charge defendant as principal and not as acces- sory in administering ergot. The offence need not be set forth as murder in technical forra.^ The description of the mode of abortion in this case was held sufficient. An indict- ment under this statute, for causing a woman to take medi- cine with intent to produce abortion, need not allege what the medicine was, nor that it was noxious.^ Since St. 1852, c. 37 (Gen. Sts. c. 168, § 2), it need not be alleged that a miscarriage was procured " feloniously ; " and no indictment is to be deemed invalid for the want of this term.* Under Gen. Sts. c. 165, § 9, a charge of procuring a mis- carriage "unlawfully " is sufficient. It need not be alleged to have been done " feloniously " or " maliciously." Any unlaw- ful use of an instrument for such a purpose is made criminal by the statute ; * and it need not be stated whether the woman died or not.^ In an indictment for procuring an abortion with the wom- an's consent, allegations of assault and battery are not de- scriptive of the offence, and so may be-rejected as surplusage. And so as to an allegation of an intent to kill the child.' In C. V. Brown, 121 Mass. 69 (1876), various counts in an indictment for abortion were held to be sufficiently certain. § 150. The Evidence. The prosecution may give evidencie of the health and feelings of the patient one month after the abortion, as also of blood-stains then seen.^ After evidence by defendant that the woman was pregnant some months after the abortion, the prosecution may rebut by showing renewed sexual intercourse in the mean time.^ The woman is not technically an accomplice ; so that the rule respecting accomplices is not applicable to her testi- mony.^" IC. U.Brown, 14 Gray, 419 (I860). 6 C. i>. Thompson, 108 Mass. 461 2 C. a. Jackson, 15 Gray, 187 (I860)- (1871). 3 C. V. Morrison, 16 Gray, 224 (I860). ' C. o. Snow, 116 Mass. 47 (1874). * C. V. Jackson, 15 Gray, 187 (I860). « C. v. Wood, 11 Gray, 85 (1858). ' C. 0. Sholes, 13 Allen, 554 (1866). « Ibid. 10 Ibid. Chap. I.] ABORTION. 127 The deceased woman's injured parts may be produced in evidence by the prosecution, in connection with the evidence of a physician who made the post mortem.^ In C. V. Brown, 121 Mass. 69 (1876), certain surgical instru- ments adapted to produce abortion were held admissible in evidence, as are burglar's implements in a trial for burglary ; as was also the testimony of physicians, as experts, as to their adaptation for that purpose. In C. V. Thompson, 108 Mass. 461 (1871), certain facts in evidence were held sufBcient to warrant the jury in finding the defendant, by whom the woman was pregnant, guilty of procuring the miscarriage. 1 C. V. Brown, U Gray, 419 (1860). CHAPTER II. ADULTERATED MILK. {Gen. Sts. c. 49, § 151 — St. 1863, c. 140 — St. 1864, c. 122 — ,Slt. 1865, e. 194— ^S"*. 1868, c. 263 - &. 1869, c. 150 — St. 1872, c. 319.) § 151. The Offence. Under St. 1856, c. 222, it was nec- essary to prove that the seller had reason to believe that the milk was adulterated ; but under Sts; 1859 and 1864, c. 122, § 4, the seller of adulterated milk is liable, though ignorant of the adulteration.' § 151 a. The Indictment. Under St. 1859, the prosecu- tion must allege and prove that defendant was in the business " of selling milk." ^ Under the provision requiring the seller's name to have been recorded in the books of the milk inspector, in order to make him liable for the sale of adulterated milk, it was held not sufficient to aver that it was recorded " in the book of J. S.," although the complaint had been made by "J. S., inspector of milk." This was a mere descriptio personce, and the fact was not so stated as to be put in issue by the plea of non cul. The indictment could be made good only by inference or argument, and was therefore bad.^ Under the same statute, it was held that the indictment must aver that defendant's name was recorded in the books " required by statute," and that alleging it to be recorded " in the books of said inspector " was insufficient, as not necessarily averring this.* 1 C. V. Flanelly, 15 Gray, 195 (1860) ; s C. w. O'Donnell, 1 Allen, 593 (1861). C. V. Farren, 9 Allen, 489 (1864). * C. v. McCarron, 2 Allen, 157 (1861). ■2 C. V. Flanelly, 15 Gray, 195 (1860). Chap. II.] ADULTERATED MILK. 129 § 151 b. The Evidence. Where defendant was charged with a sale of adulterated milk to A. B., proof that A. B. bought only as agent for her husband was held to sustain the charge ; defendant having no notice of the fact.^ A milk inspector who has used his lactometer in a great many in- stances may testify as an expert to the result of its use in the inspection of the milk in question, though no evidence be given of the character of the instrument.^ (But semble, the mere fact of an instrument having been frequently used is no proof of its accuracy as a test.) The error of admitting in evidence a milk inspector's certificate was held cured by his subsequent personal examination, in which he swore to all the facts contained in it.^ Defendant, who was the son of the owner of a milk route, together with one A., knowingly adulterated the milk, and delivered it through A. to a cus- tomer. The delivery alone was held, under the circum- stances, to constitute sufficient proof of the sale.* 1 C. a. Farren, 9 Allen, 489 (1864). » C. u. Waite, 11 Allen, 264 (1865). 2 C. o. Nichols, 10 Allen, 199 (1865). * C. v. Haynes, 107 Mass. 194 (1871). CHAPTER III. ADTTLTEEY. {Gen. Sts. c. 165, § 3.) § 162. The Offence. A husband, after his divorce for his own adultery, was held not to have committed adultery by a second marriage, but to be indictable under St. 1784.^ Since the Rev. Sts. the offence committed with a married person is adultery, whether defendant be married or single;^ and under Rev. Sts. c, 130, § 1 (Gen. Sts. c. 165, § 3), even if defendant were ignorant of the othei* party's being married.^ (But sem- ble, this offence being malum in se, a criminal intent must be shown ; and where defendant did not know the other party was married, there is no proof of intent to commit the offence charged.) In another case the proof of adultery consisted in defendant's having married a woman who had left her hus- band on account of bad treatment. She had not heard of him for more than seven years, but he was still living. Held, that defendant was guilty of adultery, though he had married the woman in good faith, believing her husband to be dead.* (It is difficult to understand how a defendant can be convicted of crime in the absence of any criminal intent. Can a man be punished for larceny for taking property he honestly believed to be his own ?) In another case, the court admitted that defendant, by marrying a wife whose husband had not been heard of for seven years, would not have been guilty of adultery ; but ^held, that this period not having elapsed, defendant's merely supposing him to be dead was no 1 C. V. Putnam, 1 Pick. 136 (1822). * C. v. Thompson, 11 AUen, 23 2 C. V. Reardon, 6 Cush. 178 (1850). (1865). ' C. V. Elwell, 2 Met. 190 (1840). Chap. III.] ADULTERY. 131 defence, and that he was properly convicted.^ (In this case the defendant had voluntarily taken the risk of a possible vi- olation of law in not waiting till the expiration of the legal period.) § 153. The Indictment. Both parties in adultery may be indicted jointly.^ A charge of adultery of A. with B., " being then a married woman, having a husband alive," is not sufiBcient to support conviction; as not certainly showing that A. and B. were not man and wife.^ An indictment charged adultery with a woman " un- known." This was held a sufficient description ; the count alleging defendant to have " a lawful wife other than said woman." * It is sufficient to allege that the woman was the lawful wife of another person, to show that she was not the wife of defendant.^ Where the offence was charged to have been committed by cohabiting with a second wife, it was held that the words " did continue " such cohabitation for six months from a day named were a sufficient averment as to time ; and that no par- ticular day need be specified.^ § 154. The Evidence. Marriage and divorce. A party's marriage is provable by the testimony of witnesses who were present at it. No copy of the record of the marriage is needed.'^ A document, purporting to be a certificate of de- fendant's marriage by a clergyman of another State, was held inadmissible to prove the marriage under St. 1840, c. 84, or St. 1841, c. 20, though derived from the possession of the wife.^ Where the defence was that defendant was not a married man, it was held that defendant might ask a witness what he said to the woman to whom he was alleged to be married, on his meeting her before the adulterous connection charged.^ Where A. and B. are jointly tried for adultery 1 C. V. Thompson, 6 Allen, 591 ^ C. v. Eeardon, 6 Cush. 178 (1850). (1863). 6 c. V. Bradley, 2 Cush. 553 (1848). = C. V. Elwell, 2 Met. 190 (1840). ' C. v. Norcross, 9 Mass. 492 (1812). 8 C. V. Moore, 6 Met. 243 (1843). 8 c. v. Morris, 1 Cush. 391 (1848). * C. V. Tompson, 2 Cush. 551 9 c_ „. Belgard, 5 Gray, 95 (1855). (1848). 132 OF PAKTICULAR OFFENCES. ; [Part III, with each other, A."s declarations of B.'s being a married woman are not admissible to affect B.-'^ To prove a divorce in California, the mere certificate of the clerk of a court, of the entry of a judgment of divorce, is not a record, and so is not admissible in evidence in Massachusetts.^ Defendant's marriage is provable by his admission, or by general repute. His statement of having a wife in England, and inquiry as to the effect of getting a divorce from her, is sufficient proof of her being still alive ; and his speaking of another woman, living in his house, as his wife, is sufficient proof that he was cohabiting with her as such.^ § 155. Time and place. A conviction is good though there were no proof of the commission of the offence on any particular day.* A witness testified to several acts of adul- tery ; inter alia, to one of a particular date, on which the prosecution elected to go to the jury. But the evidence in corroboration showed that this must have been at another time, fixed by the loss of a ticket. It was held that the pros- ecution might go to the jury on the latter date ; the day of the offence being immaterial.^ But a variance as to place may be material. Thus, where the indictment charged the offence to have been committed in Bristol County, evidence of cohabitation in Berkshire, of the woman's pregnancy, and of defendant's declaration that they had come from Bristol County, was held irrelevant and inad- missible.^ § 156. What evidence admissible. Evidence touching defendant's separation from his wife, or the support of chil- dren, is irrelevant and inadmissible.'^ A husband is not a competent witness to prove defendant's commission of the of- fence with his wife. Neither can testify directly to the com- mission of a criminal act by the other.^ In Q, v. Curtis, 97 Mass. 574 (1867), certain questions on cross-examination by 1 C. v. Thompson, 99 Mass. 444 6 c. „. O'Connor, 107 Mass. 219 (1868). (1871). 2 C. V. Blood, 97 Mass. 538 (1867). « C. ?;. Horton, 2 Gray, 35 (1854). 8 C. V. Holt, 121 Mass. 61 (1876). ^ c. v. Franklin, 6 Gray, 346 (1856). < C. V. Cobb, 14 Gray, 37 (1859). ' C. o. Sparks, 7 Allen, 534 (W63). Chap. III.] ADULTERY. 133 the prosecution were held properly allowed to be put to de- fendant and his alleged paramour, who testified that they had never had criminal intercourse with each other. A defendant in adultery who had voluntarily taken the stand as a witness and sworn he had had no intercourse with A. in the county of Middlesex, was allowed to be asked on cross-examination if he had not had such intercourse elsewhere ; his taking the stand as a witness being held to be a waiver of his privilege.^ On a trial for adultery with an unmarried woman, evidence was held to be inadmissible of the birth of a child which might have been begotten about the time of the offence charged ; the paternity of the child not being in issue.^ A. and B. were jointly tried for adultery with each other. Evi- dence of A.'s saying to B., " Did n't I say if I got you with child I would support you and the child ? " was held properly admitted, though the witness had heard no remark preceding or following this from either.^ (But, semile, this evidence was not properly admissible against B. Only a fragment of the conversation was in evidence. The language was at most but A.'s declaration ; and there was no proof of circumstances which might have rendered her silence an implied admission.) Where A. and B. are tried jointly for adultery with each other, neither of them can be convicted on A.'s admission of the com- mission of the offence at one time and B.'s at another.* Adul- tery is provable by defendant's confessions, corroborated by circumstances ; and where there are such circumstances in the case, the judge may refuse to instruct the jury that defendant cannot be convicted on his confession alone.^ Evidence of defendant's being found in the female defend- ant's bed-room in a hotel at midnight, he in bed and she not in bed, and with her clothes on, except corset and shoes, was held sufficient to warrant a conviction.^ In the same case, evidence tending to show that the defend- 1 C. V. Nichols, 114 Mass. 285 (1873). » C. o. Cobb, 14 Gray, 37 (1859). ^C. u. O'Connor, 107 Mass. 219 ^ C. k. Tarr, 4 Allen, 315 (1862). (1871). . « C. C. v. Lamb, 1 Gray, 493 (1852). Chap. IV.] ARSON. 137 One section of a statute punished the burning of a barn. A second section inflicted a more severe punishment for burn- ing a barn in the curtilage of a dwelling-house. It was held that an indictment omitting to allege the aggravation was good under the first section. ^ In an indictment for burning goods insured, an averment that the goods were insured " by the Eastern Insurance Com- pany, a corporation theretofore duly established under the laws of Maine," imports that they were insured by a corpora- tion authorized to make contracts of insurance. The exist- ence of the corporation in Massachusetts need not be alleged nor proved. Nor need it be stated whether, as a foreign cor- poration, it has complied with the requirements of Gen. Sts. c. 58, authorizing insurances in this State ; such ijisurance be- ing expressly made valid by § 72, whether these requirements have been complied with or not.^ Neither need the policy be set out.^ A charge of an intent to defraud the insurers by burning imports knowledge by defendant of the goods being insured.* A single act will not be split up into several offences be- cause of its injuring several parties. Thus, where one count charged a burning to defraud A., and a second count a burn- ing to defraud B., defendant can be convicted under one only of these counts. In C. v. Sullivan, 104 Mass. 552 (1870), it was said, a thief was held convictable of several larcenies, the packages stolen belonging to different owners ; but the case at bar was more like that of a larceny of a single article owned by two or more jointly.^ § 164. The Evidence. Whether a barn that was burned was within the curtilage of a house is a question not for the court, but for the jury, under the instruction of the court.^ Under an indictment for an attempt to set fire to a dwell- ing-house, the jury may infer the intent charged from evi- 1 C. ». Hamilton, 1 5 Gray, 480 ( 1 860 )'. 'Ibid. 2 C. 0. Goldstein, 114 Mass. 272 5 jbid. (1873). 6 C. V. Barney, 10 Cash. 480 (1852). 8 Ibid. 138 OP PARTICULAR OFFENCES. [Pakt III. dence of defendant's having attempted to commit the offence by trying to fire another building.^ And where defendant was on trial for the burning of a building September 10, the prosecution was allowed, on the question of intent, to give evidence of his having set fire August 24 and September 6 to a shed ten feet distant from the building in question.^ Evidence that the burning was wilful is admissible, though defendant have admitted that the burning was intentional by somebody.^ Where a board, partly burnt, taken from the building al- leged to be burned is produced in evidence, it is a question for the jury whether it is so affected by the fire as to show a " burning " in the legal meaning of the term.* Whether two pieces of wood were parts of the same stick is a proper question for experts.^ On a trial for burning a barn, threats of revenge made by defendant one or two years previously are admissible in evi- dence for the prosecution.^ And so is any fact showing a motive for the offence ; as that defendant's insurance on his goods in the building burned was greater than their value.'^ Where the theory of the defence, but based upon no evi- dence, was that the burning in question was one of a series by other persons than defendant, the judge was held not bound to instruct the jury with respect to it.^ Trial for burning a barn. A witness for the prosecution testified to having heard defendant and his father say that the owner had burnt it himself, to make money. It was held that, on cross-examination, defendant could not ask the wit- ness if he had not heard others say so beside defendant's father.^ (But why could he not, for the purpose of rebutting any unfavorable inference from the witness's statement ?) 1 C. V. Harney, 10 Met. 422 (1845). 6 c. v. Choate, 105 Mass. 451 (1870). 2 C. V. McCarthy, 119 Mass. 354 « C. v. Goodwin, 14 Gray, 55 (I860). (1876). ^ C. V. Hudson, 97 Mass. 565 (1867). 3 Ibid. ' 8 C. w. McCann, 97 Mass. 580 (1867). * C. V. Betton, 5 Cash. 427 (1850). ^ c. „. Hamilton, 15 Gray, 480 (I860). CHAPTER V. ASSADXiT. {Gen. Sts. c. 160; c. 170, §§ 33, 34; c. 171, § 28.) § 165. The Offence. When deemed not committed. One removing from his premises a stranger who had refused to leave is not guilty of an assault, if he use no more force than is necessary, and if the kind of force used be appropriate to the end in view ; and these are questions for the jury.^ On a trial for an assault, it appeared that A. had made a bill of sale of certain property to B., B. making his negotiable note in part payment of his purchase ; that they had de- posited the bill of sale and the note with defendant, under a written agreement that defendant was to deliver the bill of sale to B. upon B.'s paying the balance of the purchase in cash ; that the next day B., by expressing a wish to see the paper, got possession of the bill of sale without paying or offering to pay the cash balance, and that defendant's assault upon him was committed in attempting to recover possession of the paper. B. testified that he believed that some fraud had been practised upon him in the transaction, and that he in- tended to carry away the bill of sale. The judge charged the jury that if they found the transaction to have been a fraud, to which defendant was knowing, B. had a right to the posses- sion of the paper to prevent the consummation of it. The defendant was convicted ; but, on exceptions, it was held that B. could avoid the contract only by offering to restore A. to his former position and surrendering all claim to the bill of sale ; and that he could not lawfully claim the bill of sale without paying or tendering the balance of the price, as 1 C. V. Clark, 2 Met. 23 (1840). 1-10 OP PARTICULAR OFFENCES. [Pakt III. agreed. So the judgment was reversed.^ A mother may lawfully assault in defending her daughter from violence and outrage.^ A wife is not indictable for an assault and battery committed by her in company with her husband, and by his command.^ Snatching a bill from one's hand with intent to steal it, but without intent to touch the owner's person, was held not to be an assault under Rev. Sts. c. 126, § 16 * (Gen. Sts. c. 161, § 17). An assault with intent to murder is not felony. At common law, an attempt to commit a felony is only a misdemeanor.^ (But since St. 1852, c. 37, § 1 (Gen. Sts. c. 168, § 1), any crime punishable by death or by confine- ment in the state prison is felony.) Though a criminal in- tent may be shown by the fact that defendant, in committing the offence charged, was doing an unlawful act, this does not apply where the unlawful act is only malum prohibitum and not malum in se. Thus, that an assault was committed by defendant while violating a city ordinance against fast driving is no proof of criminal intent.® § 166. When deemed committed. A landlord having the right to immediate possession may take it if he can do so without a breach of the peace ; but he cannot assault the tenant in doing so, or forcibly remove his goods.'' Seizing a boy in the legal custody of his father to deliver him to his mother, the boy assenting on knowing the purpose, is an as- sault. The boy's assent is no defence. A child nine years old is incompetent to consent to a transfer of custody.^ A. and B. were tenants in common of a crop. A. sent his agent on the land to collect his share. By B.'s direction, defendant, who was B.'s servant, ejected A.'s agent from the land. He was held guilty of assault.® In another case, 0. v. Lakeman, 4 Gush. 597 (1849), it was held that one tenant in common of a barn could not forciJaly prevent his cotenant from open- ing the barn door, though with the avowed purpose of remov- 1 C. 11. Lynn, 123 Mass. 218 (1877). 6 C. v. Adams, 114 Mass. 323 (1873). 2 C. u. Malone, lU Mass. 295 (1873). ' C. v. Haley, 4 Allen, 318 (1862). 8 C. V. Neal, 10 Mass. 152 (1813). s c. v. Nickerson, 5 Allen, 518 (1862). 4 C. V. Ordway, 12 Gush. 270 (1853). » C. v. Rigney, 4 Allen, 316 (1862). 6 C. V. Barlow, 4 Mass. 439 (1808). Chap. V.J ASSAULT. 141 ing defendant's wagon. A schoolmaster is liable for an assault on a pupil, not only when acting malo animo or from passion, but also from error of judgment ; in which case, though the intent were right, the jury must decide whether the punishment was excessive.^ (But semhle, where there is no criminal intent there is no crime ; though in the case stated the schoolmaster may have been liable civilly.) An assault on A. by knocking him down and severelj' beating him is not justified by A.'s having slapped the head of de- fendant's horse, thus making him step back a few paces.^ A person within the limits of Massachusetts was assaulted and captured by Rhode Island forces as being an escaped rebel. It was held that a State, during a civil war, cannot send her troops into another State and there capture her escaped rebels, unless it should be necessary, really or apparently, for the protection of the lives and property of her citizens ; of which necessity the jury are to judge. In this case, the defendants were held also guilty of kidnapping under Rev. Sts. c. 125, § 20 (Gen. Sts. c. 160, § 30). 3 A defendant may be con- victed of assault and battery for inflicting any physical injury on another ; as by means of drugs administered. A deceit of the person in order to induce the taking is equivalent to force in overpowering the will; and defendant's ignorance of the drug being injurious to health constitutes no defence.* (But though defendant might be answerable civilly, where, in that case, would be the criminal intent ?) On a trial for an assault with intent to kill, the intent to kill is sufficiently proved by wanton and reckless acts of which death would be the ordi- nary and natural consequence.^ § 167. Assault by shooting. One shooting at two per- sons, meaning to kill one of them, not caring which, is guilty of an assault on both of them. But if the homicide would have been only manslaughter, defendant cannot be convicted of an assault with intent to murder.^ Firing a pistol at one IC. K. Eandell, 4Gray, 36 (1855). * C. u. Reynolds, 120 Mass. 191 2 C. i: Ford, 5 Gray, 475 (1855). (1876). 8 C. ^. Blodgett, 12 Met. 56 (1846). 6 c. v. McLanghlin, 12 Gush. 615 < C. w. Stratton, 114 Mass. 303 (1873). (1853). 142 OF PARTICULAR OFFENCES. [Part III. and hitting him is an assault and battery, though defendant did not know or seek to know whether the pistol was loaded or not.i Defendant aimed and pointed a gun at A., saj'ing, " I have got something here that will pick the eyes of you." This, together with the act of pointing the gun, was held sufficient proof of an assault. Pointing a gun menacingly at one who has reasonable cause to believe it to be loaded, and is thus put in fear of immediate bodily injury, if the cir- cumstances would ordinarily induce such fear in a reasonable man, is an assault, though defendant know the gun not to be loaded ; and the person aimed at could lawfully act upon it as such.'^ But even killing one with a pistol might not be a crime, if defendant fired with intent not to hit, but only to frighten an assailant. The question is one of fact for the jury, under proper instructions.^ § 168. The Indictment. " Mary R., wife of complain- ant," is a suffi.cient description of the person on whom the as- sault was made.* " And being then and there armed," &c. ; the words " then and there" need not be repeated before "did actually strike." ^ A charge of an assault " on the body of A. deceased," coupled with the clause, " whose life was endangered,'" im- ports an assault on a living person.^ In C. V. Creed, 8 Gray, 387 (1857), which was an indict- ment for an assault with a gun, certain averments were held sufficient. In Massachusetts, a count for a common assault may be joined with one for a felonious assault, if both relate to the same act ; and defendant may be acquitted of the greater and convicted of the lesser offence.'' Under Rev. Sts. c. 125, § 16 (Gen. Sts. c. 160, § 25), if all the acts are charged that are essential to show the commission of the offence, the indictment need not allege that defendant was to be deemed a " felonious assaulter." ^ 10. V. McLaughlin, 5 Allen, 507 ^ c. „. Bugbee, 4 Gray, 206 (1855). (1852). « C. V. Ford, 5 Gray, 475 (1855). 2 C. u. White, 110 Mass. 407 (1872). '' C. v. McLaughlin, 12 Cush. 612 8 C. V. Mann, 116 Mass. 58 (1874). (1853). < C. u. Gray, 2 Cush. 535 (1848). 8 Q_ „, Sanborn, 14 Gray,393 (1860). Chap. V.] ASSAULT. 143 § 169. The Evidence. A charge of an assault in Boston is sustained by proof of one in Chelsea. It is sufficient if the place proved be in the same county and within the jurisdiction of the court.i Under Gen. Sts. c. 172, § 16, on an indictment for an assault with intent to maim, a verdict of guilty of the assault without the intent alleged is good for a simple assault.^ Evidence of an assault with a dangerous weapon will support a charge of a simple assault, even where a dangerous weapon is expressly negatived in the indictment. Omne majus con- tinet in se minus.^ Defendant fired a pistol at A. and hit him ; A. saying, " Now, you 've done it ! " Defendant re- plied, " Did n't I say I 'd hit you ? " A. then went out, and defendant said he did not know the pistol was loaded. This statement was held inadmissible to prove his ignorance of the pistol being loaded. It was no part of the res gestae, but nar- rative only.* Evidence of defendant's having had a knife the day before the assault, and of its character and condition, is admissible to corroborate evidence that the assault was made with a knife.^ Defendant was charged with an assault on A., November 20, 1871. The defence was that A. first assaulted defendant. To prove this, the record of conviction of A. for an assault on defendant on the day alleged was held incom- petent, (1.) as being inter alios acta ; the present defendant not having been a party in that case ; and (2.) as having no tendency to prove the fact claimed.^ Evidence should not be admitted of a previous quarrel and fight three weeks before the assault in question.^ Whether the force used by defend- ant in defence against a battery was justifiable in kind and in degree is a question for the jury.^ A single count charging a simultaneous assault on two per- sons is good ; and is supportable by proof of an assault on one of them only. It is always sufficient if a substantive offence be shown to have been committed, though the whole charge 1 C. V. Creed, 8 Gray, 387 (1857). ^C.v. Eoach, 108 Mass. 289 (1871). 2 C.D.McGrath, 115 Mass. 150 (1874). « C.v. Lincoln, 110 Mass. 410 (1872). 3 C. V. Burke, 14 Gray, 100 (1859). T C. u. Silk, 111 Mass. 431 (1873). * C. V. McLaughlin, 5 Allen, 507 « C. v. Bush, 112 Mass. 289 (1873). (1862). 144 OP PAETICTJLAK OFFENCES. [Paht III. be not proved. The case in question, it was said, was not like that of a charge of theft of goods of A. and B. ; but rather like one of a theft of goods of A. and of goods of B.^ Where a father, with other defendants, removed his sick minor daughter to his own house, it was held that the judge rightly refused to charge the jury that the evidence was le- gally insufficient for conviction ; there being some slight evi- dence of the use of undue force, and of the removal being rather by the direction and control of other defendants than by the rightful authority of the father. ^ Assaults upon officers will be considered in the chapter on Resistance to Oeeiceks. 1 C. V. O'Brien, 107 Mass. 208 (1871). ^ c. v. Coffey, 121 Mass. 66 (1876). CHAPTER VI. BASTARDY. ( Gen. Sts. c. \Ti — St. 1862, c. 213 — St. 1863, c. 127 — St. 1865, c. 161 — St. 1866, c. 292, %2— St. 1871, c. 42 — St. 1875, c. 109.) BIGAMY. {Gen. Sts. c. 106, § 4 ; c. 165, §§ 4, 5.) BLASPHEMY. {Gen. Sts.c. 165, § 19.) § 170. Bastardy. In a prosecution under St. 1785, for the maintenance of a bastard, it was held that evidence was not admissible of the woman's bad reputation for chastity, or of her intercourse with other persons, in order to impeach her credit as a witness.^ § 171. Bigamy. Under Rev. Sts. c. 130, § 2 (Gen. Sts. c. 165, § 4), a woman was held to be guilty if she married again in less than seven years after her husband had been last heard of, though honestly believing him to be dead.^ (In this case, there was manifestly a scienter, and thus a criminal intent. Defendant knew, or was legally presumed to know, the statutory provision, and by violating it, voluntarily as- sumed the risk of the consequences.) Gen. Sts. c. 107, § 25, forbidding the guilty party divorced to marry again without leave of the court, has no extra-territorial operation. .So the party's subsequent marriage in another State will not be big- amy in this State, though the parties afterwards cohabit here ; unless it be shown they went to the other State and married 1 C. V. Moore, 3 Pick. 194 (1825). 2 C. v. Mash, 7 Met. 472 (1844). 10 146 OF PARTICULAR OFFENCES. * [Part IU. there with intent to evade the statute of Massachusetts ; as provided in Gen. Sts. c. 106, § 6.1 § 172. Indictment and Evidence. In a charge of big- amy under Gen. Sts. c. 165, § 4, it is not necessary to negative the proviso in § 5 which excepts cases where the husband or wife has remained beyond sea, or has withdrawn and been absent seven years, the defendant not knowing whether the party was living ; or where defendant has been legally di- vorced and was not the guilty cause of the divorce.^ In C. V. Johnson, 10 Allen, 196 (1865), defendant's mar- riage to his first wife in England was held provable by gen- eral reputation, in connection with other evidence. Agreeably to the general rule of law, the onus of proof of a previous divorce is on defendant; the fact being peculiarly within his knowledge.^ A marriage by a priest, followed by cohabitation as man and wife, is primdfade a valid marriage everywhere.* § 173. Blasphemy. Under Rev. Sts. c. 130, § 15 (Gen. Sts. c. 165, § 19), reenacting St. 1782, the denial of a God, with intent to calumniate him, was declared to be blasphemy. One Kneeland was indicted under this statute for a certain publication in a newspaper called The Investigator. The only clause it contained in reference to the Supreme Being was as follows : " Universalists believ^ in a god ; which I do not ; but believe that their god, with all his moral attributes (aside from nature itself), is nothing more than a mere chimera of their imagination." It was held that defendant was right- fully convicted, and that the statute was valid under that clause of the Declaration of Rights which provides that " no subject shall be hurt, molested, or restrained for his religious profession or sentiments, provided he does not disturb the public peace, or obstruct others in their religious worship." ^ (^Semble, this decision is unsupportable on any ground. (1.) It regards the published words as showing an intent to " calum- 1 C. V. Lane, 113 Mass. 458 (1873). * C. v. Kenney, 120 Mass. 387 (1876). 2 C. V. Jennings, 121 Mass. 47 (1876). ^ c. „. Kneeland, 20 Pick. 206 (1838). ' C. t. Boyer, 7 Allen, 306 (1863). Chap. VI.] BLASPHEMY. 147 niate and disparage the Supreme Being." It is not very clear how the expression of a disbelief in the existence of a being can " calumniate and disparage " that being. (2.) The clause in the Declaration of Rights prohibiting that any one should be molested " for his religious profession or sentiments " is ob- viously broad enough to cover any form of religious belief or non-belief whatever. If it be competent for the Legislature to create exceptions to this unlimited freedom of opinion guar- anteed by the Constitution, a Unitarian majority may here- after punish the preaching of the doctrine of the Trinity. (3.) But, the court say, this freedom of opinion is guaranteed to the citizen on the express condition that " he does not dis- turb the public peace," and the expression of such an opinion as is contained in the defendant's publication tends to disturb the public peace. But the excepting clause obviously refers to an actual disturbance of the peace, as by noisy assemblages, and the like. The preaching of any unpopular doctrine may tend to provoke a breach of the peace, especially in ignorant and bigoted communities. The Declaration of Rights would punish those who should molest the perhaps mistaken enthusi- ast. This decision would punish only the enthusiast himself.) CHAPTER VII. • BUEGLAEY. {Gen. Sts. c. 161, §§ 10-14 ; §§ 32-35— St. 1871, c. 76.) § 174. The Offence. To constitute burglary at commoE law, the breaking and entering must be with intent to com- mit a felony. So, in C. v. Newell, 7 Mass. 245 (1810), it was held that where the intent was only to cut off an ear, the of- fence was not burglary ; that spefies of mutilation not being felony. It is sufficient if one charged as accessory before the fact procured or incited the act to be done. It need not be shown that he knew it was to be done at night.^ It was held in G. V. Trimmer, 1 Mass. 476 (1805), that the removal of a loose plank in a partition wall, not fixed to the freehold, for the purpose of entering a shop to commit a felonj^, was not a breaking and entering under any statute then existing. But cutting and tearing down a twine netting nailed to the sides and top and bottom of a window is burglary .^ There can be no conviction if the entering was through a window already open in any degree ; defendant only pushing it open further to effect an entrance.^ But thrusting an arm or hand through an opening to enlarge it, or to remove bricks, &c., is now held sufficient.* . § 175. Shop, office, &c. In C. v. Carroll, 8 Mass. 490 (1812), it was held that there was no statute punishing the breaking into and entering a warehouse at night ; but in the following year it was decided that breaking into and entering 1 C. «. Glover, 111 Mass. 395 (1873). ' C. v. Stnipney, 105 Mass. 588 "C.J). Stephenson, 8 Pick. 354 (1829). (1870). * C. V. Glover, 111 Mass. 395 (1873). Chap. VII.] BUBGLABY. 149 a store was indictable under St. 1804.1 jn (7;y_ Tuck, 20 Pick. 356 (1838), it was thought that Rev. Sts. c. 126, omitted to punisli a breaking and entering at night into a shop adjoining to or occupied with a dwelling-house with felonious intent ; as also larceny from a shop in the night, as distinguished from simple larceny ; but these omissions were afterwards supplied by statute. A passenger room at a railroad station in which books were kept and tickets sold was held not to be an " office " underRevSts. c. 126, §11.2 § 176. Burglar's tools. Under the statute punishing the having in possession tools designed and adapted for burgla- rious purposes with intent to use them for these purposes, it is not necessary to prove that the tools had been made for the unlawful purpose." § 177. The Indictment. Charge of larceny. The charge of larceny in an indictment for burglary is added, as is said, only " in aid of the intent." (But if the larcenous intent is charged, what more is needed ? Proof of the actual com- mission of larceny would no doubt be sufficient proof of the intent ; but this is a matter of evidence, not of pleading. The anomaly has no defence but long usage.) It is no ground for a reversal of judgment, therefore, that the charge of larceny was defective.* And a count charging that defendant " broke and entered a shop with intent to commit larceny, and did there commit larceny," is not double ; ^ for though convicted by a general .verdict of guilty, defendant could not be sen- tenced for the larceny.^ In an indictment for breaking and entering under Rev. Sts. c. 126, § 14 (Gen. Sts. c. 161, § 15), it was held sufficient if the larceny of any of the goods was properly charged, the amount or value of the property being immaterial.'' § 178. Ownership of premises. " Broke into the City Hall of Charlestown " is a sufficient averment that the build- 1 C. !>. Lindsey, 10 Mass. 153 (1813). » C. v. Tuck, 20 Pick. 356 (1838). 2 C. ■;. White, 6 Cash. 181 (1850). 6 c. v. Bosworth, 22 Pick. 397 (1839). 8 C. .-. Tivnon, 8 Gray, 375 (1857). ' C. v. Williams, 2 Cush. 582 (1848). » C. V. Larned, 12 Met. 240 (1847). 150 OF PARTICULAR OFFENCES. [Part HI. ing was the property of the city of Charlestown.^ Under Rev. Sts. c. 126, § 11 (Gen. Sts. c. 161, § 12), it was held suflBcient to allege that the shop broken into was the shop of J. S. ; he occupying it with A. B., to whom it belonged ; there being no partition, but each using only one part ; though de- fendant was not shown to have broken into the part used by J. S. ; they being tenants in common.^ So, *' a certain build- ing, to wit, a shop of J. S.," was held sufficient, though J. S. occupied but one room in it.* In an indictment under Gen. Sts. c. 161, § 12, the want of an averment as to ownership is fatal ; for the premises broken into might have been defend- ant's own.* § 179. Shop or store. In an indictment under the statute punishing the breaking into " any shop not adjoining to a dwelling-house," the qualification must be negatived.^ But an indictment^ under St. 1804, c. 143, § 4, for breaking into a shop or office to steal, need not aver that it was not adjoining a dwelling-house.^ The term " shop " is sufficient, though the proof show it to have been a " store ; " these terms being equivalent in law.^ In an indictment for break- ing into a store under St. 1785, it was necessary to allege the store to have been " a building." ^ § 180. Certain averments imnaaterial. Averments usu- ally material may be safely omitted when not required in the particular case. Thus, under St. 1839, c. 31, imposing the same punishment for breaking into an office adjoining a house as under Rev. Sts. c. 126, § 11, for breaking into an office not so adjoining, the indictment need not state whether the office was so adjoining or not ; it being indifferent to defend- ant under which of the two statutes he is punished.^ And even when different punishments are imposed, the facts of aggravation calling for the higher one need not be stated ; 1 C. t. Williams, 2 Gush. 582 (1848). « Devoe v. C. 3 Met. 316 (1842); a C. V. Thompson, 9 Gray, 108 (1857). Phillips v. C. Ibid. 588. 8 C. V. Bowden, 14 Gray, 103 (1859). ' C. v. Eiggs, 14 Gray, 376 (1859). * C. V. Perris, 108 Mass. 1 (1871). « C. o. Smith, 1 Mass. 248 (1804). " C. V. Tack, 20 Pick. 356 (1838). » Larned v. C. 12 Met. 240 (1847). Chap. VII.] BURGLARY. 151 because, if these are not alleged, it will be presumed that the lesser offence is intended.^ § 181. Time. Since St. 1847, c. 13, it is sufficient to allege the offence to have been committed " in the night time." This will be understood to be from one hour after sunset to one hour before sunrise, as fixed in the statute.^ § 182. Formal requisites. " With intent to steal goods " is equivalent to " with intent to commit the crime of lar- ceny." 2 When a statute specifies the acts constituting the offence, it is not necessary to aver the act to have been done " feloniously." So, under Rev. Sts. c. 126, § 10 (Gen. Sts. c. 161, § 11), the word " burglariously " need not be used ; the statute not calling the offence burglary.* A charge of breaking and entering with intent to commit rape need not set forth fully and technically the offence of rape.^ An in- dictment charged that " some persons unknown " broke and entered a certain building in the night time with intent to steal, " contra formam statuti ; " and further, that defendant " procured said person and persons " to commit the said crime " contra formam statuti." It was held, (1.) that the indict- ment contained really but one count ; the formal words " con- tra formam statuti," ending the first clause, being mere sur- plusage ; but (2.) that if the words had been " procured said person or persons," the indictment, being then in the alterna- tive, might not have been good.^ § 183. Burglar's tools. An indictment under St. 1853, c. 194 (Gen. Sts. c. 161, § 34), for having tools in possession designed and adapted for breaking open buildings, with intent to use them for this purpose, need not specify the building intended to be broken open, nor the property to be stolen, nor the name of the owner. It is enough to charge a general intent.' An allegation that " the two " had in their posses- 1 Larned v. C. 12 Met. 240 (1847). ' C. v. Doherty, 10 Cush. 52 (1852). 2 C. V. 'Williams, 2 Cush. 582 (1848). « C. v. Glover, 111 Mass. 395 (1873). ' C. V. Josslyn, 6 Met. 243 (1843). ' C. v. Tivnon, 8 Gray, 375 (1857). » Tally V. C. 4 Met. 357 (1842). 152 OP PAETICTTLAR OFFENCES. [Paet III. sion house-breaking tools, &c., sufficiently charges a joint pos- session.^ § 184. The Evidence. If part of the stolen goods are found in defendant's possession, this raises a presumption that he stole them, and that he broke and entered.^ And any evi- dence tending to show defendant to have been guilty of the theft will tend also to show him guilty of the burglary.^ Evidence is admissible of defendant's having in possession property that was in the house broken into, though not men- tioned in the indictment.* On a trial for burglary and lar- ceny of coin, somewhat more than the amount charged as stolen was proved to have been taken from defendant and was produced in evidence. It was held that the prosecutor might identify what belonged to him out of the lot; that proof of the identity of the money with that stolen was un- necessary ; and that on the trial of a subsequent indictment against the same defendant for burglary and larceny in an- other place, the same money might be shown again and the prosecutor allowed to identify what belonged to him.^ On a trial for breaking and entering with intent to commit rape, the prosecution may show the effect of force on the person ravished.^ After the burglary charged, defendant had disap- peared from the city. This was held admissible as a sus- picious circumstance, provided the jury should find it was a flight ; that the onus of proving this was on the prosecution ; but that a flight, even if unexplained, would not be conclu- sive.'' On a trial for breaking into a shop at night, evidence was held admissible for the prosecution that defendant, the witness, and others were seen at a late hour in the night near the shop in question, as tending to corroborate the testimony of an accomplice who had testified that he was then and there with defendant.^ § 185. Burglars' tools. Burglarious tools found in de- 1 C. V. Hutchinson, 1 Mass. 6 (1804). ^ C. v. Chilson, 2 Cush. 215 (1848). " Ibid. 8 c. „. Doherty, 10 Cush. .52 (1852). » C. V. McGorty, 114 Mass. 293 ' C. v. Annis, 15 Gray, 197 (1860). (1873). 8 C. V. Elliot, 110 Mass. 104 (1872). 4 Ibid. Chap. VII.] BURGLARY. 153 fendant's possession were held admissible in evidence, though some of them were not adapted to the commission of the par- ticular burglary in question. i It is enough if some of the tools described are found in defendant's possession.^ Defend- ant's possession, with intent to use them, is sufficient, whether his possession be actual or constructive. But proof of posses- sion by one only of two defendants, though both intended to use them, is not sufficient.^ § 186. Special points. Under a charge of breaking and entering a building of J. S., occupied by him as a dwelling- house, it is sufficient, under Gen. Sts. c. 172, § 12, to prove its occupation by his family, although J. S. had deserted it be- fore the offence. Having hired it and being liable for the rent, he had constructive if not actual possession.* Under the same statute, where the house and goods were alleged to be " of Margaret Finnegan," it was held sufficient to prove her possession and occupation since the death of her husband, to whom they belonged.® Where the charge was a breaking and entering at night, it was held that there was no variance if the breaking was com- menced in the night, as by thrusting an arm or hand through, to remove bricks, or to enlarge an opening, though the entry was not consummated till next day ; ^ and under such a charge, to convict an accessory before the fact, he need not be proved to have known that the breaking was to be done at night. It is sufficient to show that he procured or incited the act.'' A defendant was indicted for breaking into the house of J. S., " on July 9." On the trial the defence objected to any evidence being received as to the time the offence was committed, on the ground that as the indictment was silent on this point, it would be presumed to have been committed in the day time. The objection being overruled, and the pros- ecution having given evidence that the breaking was after 1 C.W.Williams, 2 Cush. 582 (1848). " C. v. McGorty, 114 Mass. 293 2 C. V. Tivnon, 8 Gray, 375 (1857). (1873). ' Ibid. « C. V. Glover, HI Mass. 395 (1873). « C. u. Dailey, 110 Mass. 503 (1872). ' Ibid. 154 OP PAETIOULAK OFFENCES. [Paet III. sunset, defendant moved for an acquittal, on the ground that there was no competent evidence of the offence having been committed in the day time. But it was held that stealing from a building is not a distinct and different offence, accord- ing as it is done by night or by day ; that stealing by night is only an aggravation of the same offence ; that the indict- ment need not negative the aggravation ; that the allegation that the breaking was in the day time was not essential ; and that the prosecution could prove the commission of the offence at any time of the day or night. But it was further held that inasmuch as the aggravation of stealing by night, under Gen. Sts. c. 161, § 12, was not charged in the indictment, defend- ant could be convicted only under § 14 ; that if the evidence proved the breaking to have been at night, it would warrant a conviction .of the lower grade of the offence, and that de- fendant would have no cause to complain of being subjected to the lesser penalty.^ ' 1 C. u. Reynolds, 122 Mass. 454 (1877). CHAPTER VIII. CAEBIEES OF PASSBKGBES. {Gen. Sts. c. 160, §§ 34 et seq.) COMMON DEUNKAED. (Gen. Sts. c. 165, §§ 28 et seq. — 51;. 1864, c. 258.) COMMON EAXLEE AND BEAWLEE. ( Gen. Sts. c. 165, §§ 28 et seq.) § 187. Carriers of Passengers. The statutory limita- tion applicable to prosecutions against carriers of passenger's under Gen. Sts. c. 160, § 34, imposing a penalty for loss of life, is six years.^ § 188. The Indictment. In an indictment against a rail- road company for loss of life by negligence under St. 1840, c. 80 (Gen. Sts. c. 160, § 34), it is necessary to aver that there are a widow and heirs for the penailty to go to ; ^ and that administration has been taken out in this State.^ An indictment under Gen. Sts. c. 63, charging the loss of the life of A. B., under § 98, he not being a passenger, averred that he left no widow or children, but certain persons named who were next of kin. On demurrer, the indictment was held bad ; the clause " next of kin " being omitted in that section ; and the leading object of the statute being to make pecuniary provision for those who may have been dependent on de- ceased.4 In 0. v. E. Boston Ferry Co. 13 Allen, 589 (1866), 1 C. u. East Boston Ferry Co. 13 » C. v. Sanford, 12 Gray, 174 (1858). Allen, 589 (1866). • C. v. Boston & Albany R. E. Co. 2 C. V. Eastern R. R. Co. 5 Gray, 121 Mass. 36 (1876). 423 (1855). 156 OF PARTICULAR OFFENCES. [Paet IH. it was held only necessary to aver that defendants were car- riers for hire in a steamboat, and that the deceased was a pas- senger for hire in the steamboat ; that further averments, being immaterial, did not invalidate the indictment, though defectively stated. § 189. Common Drunkard. Under Rev. Sts. c. 130, § 18 (Gen. Sts. c. 165, § 25), drunkenness was held to be a crime though it were in private, in another person's room in the house where the offender was living.^ One may be liable as a common drunkard, without any disturbance of the peace.^ But under Rev. Sts. c. 143, § 5 (Gen. Sts. c. 165, § 28), it seems, the offender must have been habitually drunk, to the public nuisance.^ The term " common " imports frequency.* Habitual intoxication with chloroform does not make a common drunkard. The usual meaning of the word refers to intoxicating liquors.^ § 190. The Indictment. An indictment charging that defendant " was drunk not less than three times in the last six' months, and so is a common drunkard," is insuffi- cient. It was by express statute that three sales of liquor were made sufficient proof of a defendant's being a common seller.^ § 191. The Evidence. Under an indictment charging de- fendant with being a common drunkard " on and since Janu- ary 1st," no evidence is admissible of defendant's acts at any other time than January 1.''' (Because a continuing offence must be charged as committed during a certain defined pe- riod.) Defendant was proved to have been drunk five or seven times. Held, that he was not entitled to a ruling that he was to be presumed sober at all other times.^ Second drunken- ness is provable by a record of defendant's previous conviction of the "crime of drunkenness."® 1 C. u. Miller, 8 Gray, 484 (1859). « C. v. Whitney, 5 Gray, 85 (1855). 2 C. V. Conley, 1 Allen, 6 (1861). ' C. v. Foley, 99 Mass. 499 (1868). 8 C. V. "Whitney, 5 Gray, 585 (1855). » C. v. McNamee, 112 Mass. 285 * C. V. McNamee, 112 Mass. 285 (1873). (1873). ' C. u. Miller, 8 Gray, 484 (1857). s C. «. Whitney, 11 Cush. 477 (1853). Chap. Vni.] COMMON KAILBR AND BRAWLER. 167 § 192. Common Railer and Brawler. The offence may be committed by mere epithets used in the heat of a private quarrel, if so publicly as to disturb the peace of the neighbor- hood.^ 1 C V. Foley, 99 Mass. 497 (1868). CHAPTER IX. CONSPIEACT. § 193. Tlie Offence. Conspiracy is a combining of two or more persons to effect either (1.) an unlawful purpose, or (2.) a purpose not unlawful by unlawful means.^ The gist of the ofEence is the unlawful confederacy. Thus, a conspiracy to make spurious indigo with intent to defraud is indictable, though no sale of it have been raade.^ And so is a conspiracy to charge any one with crime, though no legal process have been obtained.^ And in a conspiracy to cheat, the conspiring being the gist, the cheating is but aggravation.* The obtain- ing of goods by insolvent debtors on a promise of paying cash for them, they knowing at the time that they had no funds, and afterwards appropriating them to their own use would be conspiracy ; as also, it seems, their buying of goods with- out any expectation whatever of paying for them ; but not if the goods are bought on credit, in the fair and ordinarj"^ course of business, though without disclosing their insolvency and without any reasonable expectation of paying for them.^ If several persons hire one to go to another State to testify, it is not conspiracy ; but it would be if he were hired to testify falsely.^ An association having an object which tends to im- poverish other persons is not necessarily a conspiracy. It de- pends upon whether the means to be used are unlawful or not.^ [^Semhle, rather, that if the impoverishment of other 1 C. V. Judd, 2 Mass. 329 (1807). ^ C. v. Eastman, 1 Gush. 189 (1848). 2 C. V. Hunt, 4 Met. Ill (1842). = C. v. Smith, 11 Allen, 243 (1865). 8 C. V. Tibbetts, 2 Mass. 536 (1807). ' C. v. Hunt, 4 Met. Ill (1842). * C. V. Davis, 9 Mass. 415 (1812). Chap. IX.] CONSPIRACY. 159 persons be not merely an incidental effect, but the direct ob- ject in view, it would be conspiracy ; unless, indeed, it be settled law that the end in view must be an indictable offence ; as held in G. v. Eastman, 1 Gush. 189 (1848) ; 0. v. Prius, 9 Gray, 127 (1857) ; and 0. v. Wallace, 16 Gray, 221 (1860). The more recent decision next following seems to indicate a different doctrine.] A conspiracy to cause it to falsely ap- pear of record that A. is lawfully married to B., and to obtain for this purpose a false certificate of marriage from a justice of the peace, and a certificate from the city registrar by false personation and representations, with intent to injure A. and ■prevent his being married to any other person, is an indicta- ble offence.! -phe acts contemplated need not constitute an indictable offence. A combination to do something unlawful, either as a means or as an ultimate end, would constitute a conspiracy. It is sufi&cient if the end proposed or the means to be employed, by reason of the combination, would be dan- gerous to the public welfare, " or injurious to some indi- vidual." A successful combination to cause a marriage to falsely appear of record would tend to impair the value of public records for the protection of the marriage relation and the rights involved in it. A false personation and the issuing of a false certificate of marriage to be recorded, vrith such in- tent, are unlawful means ; these acts being expressly made punishable by Gen. Sts. c. 162, §§ 1, 2. Even if the issuing of a false certificate be not unlawful, it is sufficient that it be punishable by impeachment of the magistrate and his removal from office. In the particular case, the fact that A. had co- habited with B., and held her out as his vsrife would not ren- der the conspiracy less criminal.^ An indictment set forth that it was the rule of a club that no member of it should work for a master who should employ one not a member. This was held not to be a sufficient averment of an unlawful purpose, or of unlawful means as against a master A., though it was added that A. was thereby compelled to dismiss B. from his employ for non-payment of a penalty due under 1 C. V. Waterman, 122 Mass. 4.3 (1877). 2 ibid. 160 OF PARTICULAK OFFENCES. [Pakt III. the by-laws ; and that the indictment was not helped by an averment of an intent to impoverish B., by hindering him from following his trade and earning his living.^ One of two persons is guilty of a conspiracy to defraud if the other act with his knowledge, approval, concurrence, and direction.^ It is not essential that the defendants should have conspired for their own personal benefit.^ The common law making conspiracy indictable continues in force in this State under the Constitution, chap. vi. art. 6.* § 194. Merger. In C. v. Kingslury, 5 Mass. 106 (1809), it was held that when the intended offence has been com- mitted, the conspiracy to commit it is no longer indictable as a distinct offence ; that the conspiracy was but a part of the offence and was merged in it ; that the offender was punish- able but for one offence. But in C. v. O'Brien, 12 Cush. 84 (1853), it was queried whether a conspiracy to commit a fel- ony is merged in the felony consummated, and so not pun- ishable as a distinct offence. Finally, in C. v. Walker, 108 Mass. 309 (1871), it was decided that conspiracj'', which is a misdemeanor, is not merged, by its execution, in felony. § 195. Jurisdiction. The liability of a bankrupt to crimi- nal prosecution in the United States courts under the Bank- rupt Law of 1867, § 44, for obtaining goods on credit with in- tent to defraud, does not exclude state jurisdiction in a case of conspiracy under state statutes.^ § 196. The Indictment. Either an unlawful purpose, or if the purpose be not unlawful, unlawful means must be set forth, fully and clearly.^ If the purpose be unlawful under a statute, the purpose must be so set forth as to bring it within the statute.'^ It is not sufficient to aver that defendants con- spired to cheat J. S., or to get his goods under pretence of buying, and then removing them ; because " cheating and defrauding " does not necessarily import an offence either at 1 C.i'. Hunt, 4 Met. Ill (1842). 6 C. i;. Walker, 108 Mass. 109 (1871). 2 C. u. Harlcy, 7 Mot. 462 (1844). « C. v. Hunt, 4 Met. Ill (1842). » Ibid. ^ C. V. Eastman, 1 Cush. 189 (1848). * C. V. Hunt, 4 Met. HI (1842). Chap. IX.] CONSPIRACY. 161 common law or by statute. The object must be set forth by further allegations showing it to be such.^ And a charge of conspiring to " cheat and defraud " was held to be insuflB- cient in not setting forth the means intended to be used ; and it was held not aided by the charge of overt acts.^ So, where the charge was a conspiracy to get over-insurance by falsely pretending the value of the property insured to be greater than it was, with intent, by false pretences of loss thereafter to happen, to cheat and defraud the insurers by means of said false pretences, not stating the means by which the money was to be obtained, was held insufficient, as vague and indefinite. It was not a crime to get over-insurance, and so not a crime to conspire to do it ; and the unlawful means to be used were not definitely shown.^ (It is not easy to see how they could have been shown more definitely.) § 197. Acts need not be alleged. The conspiring being the gist of the offence, and acts in pursuance of it being only aggravation, it is not necessary to set them forth. Thus, an indictment for a conspiracy to charge one falsely with crime need not allege the procuring of an indictment or other legal process, or an intent to procure it.* And if acts done under the conspiracy are set out, they need not be proved ; ^ and the execution of the conspiracy need neither be alleged or proved.^ § 198. The Evidence. On a trial for a conspiracy to ob- tain goods without intending to pay for them, the prosecution may ask a witness if defendants' credit was such that they could have bought the goods on credit.'^ Purchases by de- fendants of other persons about the same time are admissible to show the intent, and the nature and extent of defendants' business. And so as to the sending of bills of lading and drawing against them before all the goods were bought.^ To make the acts of a co-conspirator evidence against a defend- 1 C. V. Eastman, 1 Cush. 189 (1848). ' C. v. Eastman, 1 Gush. 189 (1848). 2 C. V. Shedd, 7 Cush. 514 (1851) ; » C. c. O'Brien, 12 Cush. 84 (1853). C. V. Wallace, 16 Gray, 221 (1860). ' C. v. Eastman, 1 Cush. 189 (1848). 8 C. V. Prius, 9 Gray, 127 (1857). » Ibid. * C. V. Tibbetts, 2 Mass. 536 (1807). n 162 OF PARTIOULAK OFFENCES. [Part HI. ant, it is sufficient if the fact of the conspiracy be proved by a witness who is competent. His credibility the court will not decide upon.^ Acts done under the conspiracy need not be proved even if alleged ; the gist of the offence being the con- spiring.2 On a trial for a conspiracy to defraud an insurance com- pany by removing furniture insured and then setting fire to the building containing it, it being proved that defendant did not know of the policy of this particular company till after the fire, the variance was held fatal ; ^ and an averment that defendants conspired to cheat A. is not supported by proof of a conspiracy to cheat the public, or any one defendants might meet.* On a trial for a conspiracy to falsely make it appear that A. was married to B., the issue being the falsity of the record, A. is a competent witness to prove that he was never married to her.5 Even where a primd facie case has not been made out against certain of the defendants, if there is evidence enough to warrant an inference of their being parties to the conspiracy, this is sufficient to justify the judge in admitting evidence of admissions of one of them involving the guilt of the others ; the order of testimony being largely within the discretion of the court.^ 1 C. o. Crowninshield, 10 Pick. 497 * C. i> Harley, 7 Met. 506 (1844). (1830). 5 c. V. Waterman, 122 Mass. 43 2 C. a. Eastman, I Cush. 189 (1848). (1877). 8 C. V. KeUogg, 7 Cush. 473 (1851). « Ibid. CHAPTER X. COTTNTEEPEITING. {Gen. Sts. c, 162 — St. 1874, c. 78 — -Si!. 1875, c. 40.) OEXJBLT¥ TO ANIMALS. {Gen. Sts. c. 165, § 41 — ,Sif. 1868, c. 212 — St. 1869, c. 344 — St. 1877, e. 60.) § 199. Counterfeiting. Uttering a counterfeit bank bill with the name of a fictitious cashier was not an offence under St. 1800, c. 64.^ Delivering a bank note to an ignorant boy to be passed by him was held to be " passing " it under St. 1804, c. 120, § 3.2 Under Rev. Sts. c. 127, § 6 (Gen. Sts. c. 162, § 5), defendant is liable if an intent be proved to pass a counterfeit bill out of the State.^ Under the same chapter, § 6, and St. 1836, c. 4, § 15, the offence was not committed unless the bills were of a bank incorporated under the laws of Massachusetts ; this being the meaning of the clause " a bank established in this State." * In O. v. Hayward, 10 Mass. 34 (1813), it was held not to be an indictable offence to cut and mutilate bank notes to form an entire one, with intent to defraud. § 200. Possession of bills and materials. Under St. 1804, c. 10, punishing the having in possession ten counter- feit bank bills with intent to pass them as true, the term " similar " was held not to mean that all the bills should be of the same date, amount, &c. ; but only that they should be all bank bills.^ Under the same statute it was held that 1 C. u. Boynton, 2 Mass. 77 (1806). < C.v. Simonds, 11 Gray, 306 (1858). 2 C. t;. Hill, 11 Mass. 136 (1814). » Brown v. C. 8 Mass. 59 (1811). » C. V. Price, 10 Gray, 472 (1858). 164 OF PARTICULAR OFFENCES. [Pakt HI. " having a knowledge of the false making " did not refer to the time of their fabrication, but meant only that the offender knew the bills to have been falsely made.i Under this stat- ute counterfeit bills might be " in the similitude " of bills of a bank, though the bank had never issued bills of the same de- nomination. It was sufficient if they had the external appear- ance of bills issued by the bank and purported to be signed by the president and cashier, this being the " similitude " meant in the statute.^ The possession of ten counterfeit bills with intent to pass them in another State was held to be an ofEence under St. 1805.^ But where defendant had sold counterfeit bills to A., suggesting to him not to pass them in the State, held, that he could not be convicted if he did not participate in A.'s intent to pass them as true.* The possession of forged bills of the bank of A. with intent to pass them, there being no such bank in existence, was held not to be an offence under St. 1805 ; ^ neither was the possession of materials for counterfeiting bank notes without intent to use them.^ § 201. Counterfeit coin. Having possession of an instru- ment adapted only to make one side of a false coin is sufficient under Rev. Sts. c. 127, § 18 (Gen. Sts. c. 162, § 17).' Cali- fornia gold coin not being a legal coin of any government, it was held that passing a California coin was not an offence under Rev. Sts. c. 127, §§ 15, 16 (Gen. Sts. c. 162, §§ 14, 15), and that the coin not being a lawful coin, no usage of its being current in this State was admissible in evidence.^ The offence of having in possession counterfeit coin in the similitude of coin current in the State was held to be com- mitted by having coin in the likeness of a Mexican dollar.^ § 202. The Indictment. An indictment is insufficient that does not bring the case within all the material words of the statute directly, and not inferentially.^" Thus, under Rev. Sts. c. 127, § 6 (Gen. Sts. c. 162, § 6), and St. 1830, c. 4, § 15, 1 Brown v. C. 8 Mass. 59 (1811). « Ibid. 128. 2 C. V. Smith, 7 Pick. 137 (1828). ' C.v. Kent, 6 Met. 221 (1843.) » C. u. Cone, 2 Mass. 132 (1806). « C. r.Bond, 1 Gray, 564 (1854). * C. V. Davis, 11 Gray, 4 (1858). " C. v. Stearns, 10 Met. 256 (1845). 6 C. V. Morse, 2 Mass. 138 (1806). w Brown v. C. 8 Mass. 59 (1811). Chap. X.] COUNTERFEITING. 166 it was held insufficient to aver that the bank -was " established in this State." It was necessary to allege that it had been " incorporated by the laws of this State." ^ Under St. 1804, c. 120, § 4, it was held sufficient to aver that defendant had counterfeit bills in his possession with intent to pass the same, without adding " as true." ^ An averment that defendant had ten or more counterfeit bills in his possession " on the same day " is not sufficient ; it must be averred " at the same time." 3 Rev. Sts. c. 127, § 15 (Gen. Sts. c. 162, § 14), pun- ishes the having of more than ten counterfeit pieces with in- tent, &c. ; § 16 (§ 15), having less than ten. The indictment charged 100 pieces. The jury found four. Held a good con- viction under § 16.* Under Gen. Sts. c. 162, § 6, an averment that the counter- feit bank bills were " uttered and passed as true " does not render the indictment double.^ § 203. Description. The indictment must describe the counterfeit bills, or show why they are not described.^ A charge of uttering a counterfeit bank bill may set it forth as a promissory note.'^ In a charge of having in possession coun- terfeit coin " in the similitude of coin current in the State called a dollar," this description was held to be sufficient.^ A description of a counterfeit bill under Eev. Sts. c. 127, § 2 (Gen. Sts. c. 162, § 2), as a promissory note, was held to be good, if it did not show the note to be one of those men- tioned in § 6 ; which described a distinct offence, for which a different punishment was awarded.^ In the copy of a coun- terfeit bank bill set forth in an indictment the signatures were given thus : " , Cashier ; , President." It was held that the defect of the blanks was not helped by an averment of the grand jurors that they could not describe the bill better.io § 204. The Evidence. On a trial for having in posses- iC.i^.Simonds.U Gray, 306 (1858). « C. i-. Houghton, 8 Mass. 107 (1811). 2 Hopkins v. C. 3 Met. 460 (1842). ' C. v. Carey, 2 Pick. 47 (1823). ' Edwards v. C. 19 Pick. 124 (1837). » c. v. Steams, 10 Met. 256 (1845). * Ibid. 9 c. „. Simonds, 14 Gray, 59 (1859). ° C. V. Hall, 4 Allen, 305 (1862). i" C. v. Clancy, 7 Allen, 537 (1863). 166 OP PARTICULAR OFFENCES. [Part HI. sion a counterfeit bank note, it was held not enough that a witness should swear to the identity of the note if he had not had it constantly in possession, or put a private artificial mark upon it ; accidental marks not being sufficient.^ On a trial for passing a counterfeit bill of a bank of another State, the testimony of witnesses was held sufficient, who had very often received and paid out bills of the bank, and had carried large numbers of them to the bank, all of which had been paid as genuine, though they had not seen the president or the cashier write.^ On a trial for having in possession an instrument adapted and designed for coining, with intent to use it, defendant's declarations to the maker, showing an in- nocent purpose in having it made, were held inadmissible.^ (But a contrary decision was afterwards made in a similar case in C. v. O'Connor, 11 Gray, 94 (1858).) § 205. The scienter. On a trial for having a counterfeit bill in possession with intent to pass it as true, to prove de- fendant's guilty knowledge, evidence was held admissible of his having passed another bill about the same time, knowing it to be counterfeit. But his conversation about such other bill, after passing it, was held inadmissible to prove the fact that such bill was counterfeit, unless the bill were produced, or proved to have been destroyed.* Evidence of defendant's having passed other counterfeit bills is admissible, though there be an indictment pending against him for such passing.^ The guilty knowledge and intent are provable by defend- . ant's subsequent possession of other counterfeits.^ On a trial for passing counterfeit bills under Gen. Sts. c. 162, § 6, to show defendant's guilty knowledge, evidence was held admissible of defendant's having been employed in printing parts of bills ; also of. his having swallowed a bill like the one in question on being arrested.^ § 206. Cruelty to Animals. Under Gen. Sts. c. 165, § 1 C. V. Kinison, 4 Mass. 646 (1808). « C. v. Stearns, 10 Met. 256 (1845). 2 C. 0. Carey, 2 Pick. 47 (1823). » C. v. Price, 10 Gray, 472 (1858). a C. V. Kent, 6 Met. 221 (1843). ' C. o. Hall, 4 Allen, 305 (1862). ' C. V. Bigelow, 8 Met. 235 (1844). Chap. X.] CRUELTY TO ANIMALS. 167 41, the ofEence is the same, whether committed by the owner of the animal or by a stranger.^ Where the ofEence was committed by overdriving a horse, it was held not necessary to prove a design to torture or inflict pain ; that defendant must be taken to know the natural consequence of his own acts, and that it was enough if he overdrove " knowingly and wil- fully ; " but that if in the honest exercise of his own judgment he thought he was not overdriving, he would not be guilty.^ § 207. The Indictment. In an indictment for torturing a cow under St. 1869, c. 344, § 1, it was held not essential to allege in what capacity defendant was in charge of her ; the words " having the charge or custody " relating to the other ofEence of failing to provide food or shelter.^ § 208. The Evidence. On a trial for cruelly overdriv- ing a horse, evidence that defendant's parents had previously asked the owner of the horse not to let him have it, was held irrelevant.* 1 C. p. Lufkin, 7 Allen, 579 (1863). 8 c. ;,. Whitman, U8 Mass. 458 2 C. V. Wood, 111 Mass. 408 (1873). (1875). * C. V. Wood, HI Mass, 408 (1873). CHAPTER XI. EMBEZZLEMENT. {Gen. Sts. c. 13, § 167, Art. xxiii. ; c. 24, § 8 ; c. 96, § 6; c. 161, %% 12,5 et seq. ; c. 172, § 12. — ^it. 1874, c. 79 — & 1877, c. 231 — St. 1878, c. 105 ;c. 186.) § 209. The Offence. In Rev. Sts. c. 126, § 29 (Gen. Sts. c. 161, § 38), "money, &c., of another" means of some other person than the defendant.^ § 30 (§ 41 ) was held to apply only to one who received money, &c., to be delivered to an- other person. So, where the money was intrusted to defend- ant only to be kept for the bailor, there was held to be no em- bezzlement under the statute, penal statutes being construed strictly.^ But Gen. Sts. c. 161, § 35, has since enlarged the crime ; delivery to one to be delivered to another person not being required.^ The treasurer of a company appropriating to his own use, without claim of right, moneys deposited with him as treasurer, without the company's knowledge or consent, is guilty of embezzlement, though the moneys drawn out by him are not identically the same as those deposited, but in coin or bills, and though the guilty intent was not formed when the moneys were drawn out.* A fraudulent conversion by de- fendant of moneys paid over to him by mistake is not em- bezzlement under St. 1857, c. 233 (Gen. Sts. c. 161, § 35), making embezzlement punishable as larceny. The statute meant to provide for a class of cases combining the moral guilt of larceny with the asportation technically essential to it, the goods being in the lawful possession of the offender by virtue 1 C. w. Stearns, 2 Met. 343 (1841). * C. v. Tuckerman, 10 Gray, 173 2 C. V. Williama, 3 Gray, 461 (1854). (1857). » C. V. Butterick, 100 Mass. 9 (1868). Chap. XI.] EMBEZZLEMENT. 169 of his employment. Where no such privity exists, the statute does not apply.^ So, where the owner's possession has not been divested there is no embezzlement ; as where A. con- sented to lend defendant one dollar, and handed him a roll of $38 in bills, from which he was to take the dollar, instead of which he carried the whole away.^ (But under Gen. Sts. c. 161, § 35, was not the money " delivered" to him, and then " fraudulently converted to his own use ? ") In the more re- cent case of C. v. Hussey, 111 Mass. 435 (1873), it was held sufficient if the property was delivered to defendant on the trust and confidence that he would return it to the owner on demand. So there is ho embezzlement where the owner re- mained in the possession of it, though defendant had the cus- tody of it in the capacity of a servant.^ On a trial for embez- zlement by a bank treasurer under St. 1846, c. 171, § 1 (Gen. Sts. c. 161, § 39), it appeared that defendant had received the money in his official capacity from a depositor. There was no proof that he did not put it with the other bank funds ; but it was proved that he afterwards altered an account book of the bank to make it appear that the deposit had been made two months before. This was held not to be a fraudulent taking and secreting of funds by defendant under the act, with intent to convert to his own use.* But using bonds be- longing to another as collateral security for the taker's own debt, though with intent to restore them, is a fraudulent con- version, and therefore an embezzlement.^ A conversion by a creditor of a collateral security before the debt is due is pro- vided for in Gen. Sts. c. 161, § 64, and is not punishable as an embezzlement. Otherwise as to a conversion after the debt is due, if there be a trust to return when the debt is satisfied.^ Defendant's sending a note intrusted to him to get discounted, with a direction to place it to his own credit, is an embezzle- ment, though defendant afterwards pay over a part of the 1 C. V. Hays, 14 Gray, 62 (1859). « C. v. Shepard, 1 Allen, 575 (1861). 2 C.y.O'Malley, 97 Mass. 584(1867). « C. «. Tenney, 97 Mass. 50 (1867). 8 Atkyns v. Barnstable Co. 97 Mass. 6 C. v. Butterick, 100 Mass. 1 (1868). 428 (1868). 170 OF PARTICULAK OFFENCES. [Part IH. proceeds.^ An embezzlement of several articles at the same time may be treated as a separate embezzlement of each, as in the case of larceny.^ The mere making of false entries or of false additions in books of account does not constitute embez- zlement.3 § 210. The intent. It is no less an embezzlement that the offender intended at the time to restore the thing taken, and had property enough to make full restitution.* But if, when defendant took the money, he supposed himself to have the rights of a partner with respect to it, he cannot be convicted.^ Where defendant embezzled his own mortgage received by him from the register of deeds for . delivery to the mort- gagee, he was held to be rightly convicted ; and his having in the mean time conveyed the mortgaged land to another was deemed evidence of a fraudulent intent.® § 211. Defendant's character or capacity. An auction- eer misapplying moneys proceeding from the sale of his prin- cipal's goods is not liable as " agent or servant " under Rev. Sts. c. 126, § 29 (Gen. Sts. c. 161, § 38), the money being deemed to be his own ; though he is owing a debt to the prin- cipal, whether on a contract to pay over generally, or on a spe- cial contract to pay over certain sums.^ Under § 27, the term " bank officers " was held to include the president and the di- rectors.^ An agent to collect bills for a newspaper is not liable under § 29 (§ 38) ; neither are commission merchants or at- torneys.^ (This dictum in respect to attorneys may properly apply to an attorney receiving moneys merely as a collecting agent, but not, semhle, to a case where he receives money for or from his client on a special trust.) Neither under this sec- tion nor under* St. 1853, c. 184, is a mechanic liable for em- bezzlement who sells shoes delivered to him to make up ; he being a principal, and not an agent or servant ; i" but the 1 C.w.Butterick, 100 Mass. 1 (1868). « C. v. Concannon, 5 Allen, 502 2 Ibid. (1862). » »C. «. Bennett, 118 Mass. 443 (1875). ' C. t). Stearns, 2 Met. 343 (1841). *C. V. Tuckerman, 10 Gray, 173 » C. w. Wyman, 8 Met. 247 (1844). (1857). 9 C. V. Libbey, 11 Met, 64 (1846). ' C. V. Bennett, 118 Mass. 443 (1875). » C. v. Young, 9 Gray, 5 (1857). Chap. XI.] EMBEZZLEMENT. 171 treasurer of a railroad company is liable under § 29 ( § 38).^ If one employed to sell A.'s notes and pay over the proceeds to B., but not as a broker (and so with no authority to min- gle the proceeds with his own funds), fraudulently conyert the proceeds, it is embezzlement.^ § 212. JTorisdiction. An embezzlement of United States bonds deposited in a national bank by an employee of the bank was held to be cognizable by a state court ; the act not being punishable under any law of Congress.^ But in C. V. Felton, 101 Mass. 204 (1869), it was held that the state courts could not punish this offence when committed by an oiEcer of a national bank ; the United States Act of 1864, c. 106 making an embezzlement by such officers a misde- meanor, and the jurisdiction of the United States courts being exclusive. § 213. The Indictment. Rev. Sts. c. 133, § 10 (Gen. Sts. c. 161, § 42), making it sufficient to allege an embezzle- ment to a certain amount, with liberty to prove at the trial any embezzlement within six months after the time stated, was held not to apply to prosecutions against bank officers. Specific acts of fraud must in such cases be charged, and the conviction must be of such specific acts.* Where a larceny by embezzlement under the statute is charged, the indictment must set forth- the facts constituting the embezzlement.^ A charge that defendant was intrusted with certain property described, to be delivered to A. on demand, that defendant re- fused to deliver it and embezzled it, was held to be fatally defective, the purpose of the trust not being set forth, nor what property was embezzled.^ Under Gen. Sts. c. 172, § 12, authorizing in indictments the use of the name of the general or of the special owner of property, bounty money sent through^ defendant by a minor recruit to his father, and which defendant embezzled, was properly alleged to belong ^ C. V. Tuckerman, 10 Gray, 173 * C. a. Wyman, 8 Met. 247 (1844). (1857)- * C. u. Simpson, 9 Met. 138 (1845). 2 C. u. Foster, 107 Mass. 221 (1871). 6 C. v. Smart, 6 Gray, 15 (1856). ' C. V. Tenney, 97 Mass. 50 (1867). 172 OF PARTICULAR OFFENCES. [Pakt III. to the father.^ A charge of an embezzlement of bonds, " to be safely kept for A. till A. called for them," was held to sufficiently set forth a trust to warrant a conviction for a subsequent conversion of them.^ In a charge of embezzle- ment under Gen. Sts. c. 161, § 38, of property of A., B., and C, alleging that defendant was not an apprentice to them, and that it was " without their consent," it was held not nec- essary to negative the consent of either of them, or that de- fendant was an apprentice to either of them.^ Under the Bill of Rights, requiring an offence to be set forth " fully and plainly, substantially and formally," " certain moneys to the amount of $25,000," is a sufficient specification of moneys em- bezzled. Whenever an offence is of a general nature and charged in general terms, the defendant may obtain a specifi- cation of particulars by an order, which will be granted when circumstances require it.* Taking money " of A. and B." is a sufficient allegation that it was the property of A. and B.^ It need not be alleged that the property continued to belong to the party at the time of the embezzlement, this being pre- sumed.^ Where goods were delivered to defendant under a trust and confidence that he would return them to the owner, it need not be alleged on whose demand they were to be re- turned. It will be presumed that it was to be on the demand of the owner or of some one on his behalf.^ -An indictment charged the larceny, under Gen. Sts. c. 161, § 35, of money delivered to defendant in trust and confidence to be paid over to an engine company of which defendant was a member, and having a treasurer, A. B., who was authorized to receive it ; but that before paying it over, defendant embezzled it. The proof was that the specific trust was to pay over to the treas- urer, not to the company, nor to the company through the treasurer. It was held that the charge, as made, was not sustained.^ 1 C. V. Waite, 11 Allen, 264 (1865). 6 Ibid. 2 C. V. Butterick, 100 Mass. 1 (1868). 6 C. v. Butterick, 100 Mass. 1 (1868). s G. V. Smith, 116 Mass. 40 (1874). ' C. v. Hussey, 111 Mass. 432 (1873). * C.v. Bennett,U8 Mass. 443 (1875). » C. v. O'Keefe, 121 Mass. 59 (1876). Chap. XI.] EMBEZZLEMENT. 173 § 214. The Evidence. It is not necessary to prove a de- mand of the money embezzled, nor a denial of its receipt, nor a false account, statement, or entry, nor a refusal to account.^ The owner of bonds embezzled cannot be asked by the defence whether, if defendant had requested him to allow him to keep the bonds longer he would have assented, or whether he had any objections to defendant's using them as he did at the time he was intrusted with them ; the fact being irrelevant and immaterial.^ Defendant had given his own notes as collateral security to A., the party defrauded, and there was no proof of the notes having been returned to him. Bat this was held immaterial, they being held only as defendant's re- ceipt for A.'s own note, which he misapplied.^ The amount and value of certain notes embezzled was averred to be $65, but without any particular description of them. Though their amount and value was proved to be $70, it was held no variance.* Where only one act of embezzlement is charged ■ the prosecution can prove only one ; but is not bound by any one of those it has given evidence of, unless it has elected to abide by it.^ In 0. v. Tuckerman, 10 Gray, 173 (1857), a certain conversation between defendant and a director of the . company defrauded was held not to be such as to exclude his confession on the ground of undue influence. § 215. The intent. Defendant's intent may be proved by evidence of other previous acts of a similar character ; ^ but the jury must be instructed as to their effect.'^ And under Gen. Sts. c. 161, § 42, for this purpose, evidence is admissible of other embezzlements by defendant within six months after the day nained in the indictment.** Where defendant had embezzled his own mortgage delivered to him to restore to the mortgagee, evidence of defendant's having in the mean time conveyed on record the mortgaged land to another person was held admissible to prove his fraudulent intent.^ 1 C. V. Tuckerman, 10 Gray, 173 « C. „. Tuckerman, 10 Gray, 173 (1857). (1857). 2 C.u.Butterick, 100 Mass. 1 (1868). ' C.v. Shepard, 1 Allen, 575 (1851). 8 C. V. Foster, 107 Mass. 221 (1871). ^ c. v. Bennett, 118 Mass. 443 (1875). *C. <^. Hussey, 111 Mass. 432(1873;. » C. ... Concannon, 5 Allen, 502 5 C. u. Bennett, 118 Mass. 443 (1875). (1862). CHAPTER XII. ENTICING FEMALE. {Gen.Sts.c. 165, §§1,2.) ESCAPE. (Gen. Sts. c. 163, §§ 11 et seq. ; c. 178, §§ 46, 49 ; c. 179, §§ 53-58.) EXPOSTJEE OE CHILD. EXTORTION. {Gen. Sts. c. 160, § 28 ; c. 163, § 22.) § 216. Enticing Female. St. 1845, c. 216 (Gen. Sts. c. 165, § 2), punishing the enticing away of a female for the purpose of prostitution, does not apply to an enticing away for sexual intercourse with defendant alone.^ § 217. Escape. Rev. Sts. c. 143, § 51 (Gen. Sts. c. 178, § 46), punishing attempts to escape from jail, was held to apply only to convicts, not to prisoners confined for want of bail for their appearance.^ Under Gen. Sts. c. 178, § 46, an escape from a yard appurtenant to the prison is an escape from prison.^ A convict's escape from an officer conducting him under a mittimus is an offence at common law, and pun- ishable in Massachusetts.* It is no defence to a charge of aiding an escape that there was an irregularity in the com- plaint or in the sentence, the prisoner being held under a warrant.^ Gen. Sts. c. 163, § 12, punishing one who aids a prisoner in escaping or in attempting to escape from an officer's custody, does not apply to one who innocently aids. Other- wise, if defendiant's act were unlawful per se ; as if he was 1 C. V. Cook, 12 Met. 93 (1846). * C. v. Earrell, 5 Allen, 130 (1862). 2 C, V. Horner, 5 Met. 555 (isyi3). » C. v. Morihan, 4 Allen, 585 (1862). 8 C. V. Curiey, 101 Mass. 24 (1869). Chap. XII.] EXPOSURE OP CHILD. — EXTORTION. 175 assaulting an officer ; in which case knowledge of the officer's character would not be necessary.^ (But if defendant, not knowing the officer's character, was only interposing to pre- vent, as he supposed, an unlawful imprisonment, would he not then have been " innocently aiding ? ") § 218. Exposure of Child. A common law indictment for an assault and exposure of a child was held insufficient to show a criminal exposure ; there being no averment that the child was of tender years, or that he was in defendant's charge ; but was held good for the assault.^ § 219. Extortion. The taking by an officer of a negotiable promissory note for fees not due was held not to be extortion ; extortion at common law being of money or of something of value. Such a note, being void for illegality of considera- tion, had no value.^ (But semile, this decision was erroneous. That the note was extorted from the maker did not render it absolutely void. Being negotiable, though it could not be enforced by the officer himself, it would have been valid in the hands of a holder in good faith and for value. Again : The note had value in the hands of the officer, since he could sell it for cash ; and it would have had value, if taken for value and without notice, in the hands of the officer's trans- feree, who could legally compel payment by the victim of the extortion.) If an officer exacts his fee before it is due, it is extortion at common law, which was not abrogated by St. 1795. Thus, a jailer was held guilty of the offence who had taken from a prisoner on his entrance the fee of twenty cents that would be due on his discharge.* § 220. Threat of criminal prosecution. A false state- ment that a warrant had been already issued, which would be served if the money was not paid, is a " threat " within the meaning of Gen. Sts. c. 160, § 28.° A threat to complain to a police officer was held indictable as a threat to accuse the 1 C. V. Filburn, I19Mass.297 (1876). * C. u. Bagley, 7 Pick. 279 (1828). 2 C. 1/. Stoddard, 9 Allen, 280 (1864). * C. «. Murphy, 12 AUen, 449 (1866). 3 C. V. Cony, 2 Mass. 523 (1807). 176 OP PAETICULAR OFFENCES. [Pakt III. party of an offence, in C. v. Carpenter, 108 Mass. 15 (1871), ■where was fully discussed what is necessary to sustain the charge of extortion. Where the charge was that defendant threatened to accuse A. of seduction, it was held that defend- ant's saying to A. " that the woman would swear to it ; her oath would send him to the state prison ; but if A. would pay him $1,000 he would let him go," imported a present threat, and not a mere offer to compound an offence imputed in some past threat.^ The word " maliciously " in Gen. Sts. c. 160, § 28, does not necessarily imply ill will, or revengeful feelings or malice toward the person threatened. It refers simply to the wilful doing of an unlawful act without excuse.^ § 221. The Indictment need not set out distinctly[the par- ticular crime the party was threatened to be accused of ; the threat being often vague intentionally ; ^ nor the precise words of the threat, nor the whole of the conversation.* The pre- cise words are not the gist of the offence, as in blasphemy and in libel.^ Extorted "by such threat" sufficiently charges an intent to extort by the threat already set forth.^ The facts constituting the offence of which the party has been threat- ened to be accused of need not be set out with the particu- larity required in an indictment for the crime itself. Thus a charge of threatening to accuse one of burning a building in- sured need not set forth the situation nor any description of the building, nor the amount insured, nor the names of the insurers.' § 222. The Evidence. On a trial for threatening to ac- cuse A. of crime, proof of defendant's threat of accusing him of " seducing " a woman was held sufficient to sustain the ver- dict. The jury might infer that the accusation threatened referred to an actual accomplishment of the purpose.^ But where, under Gen. Sts. c. 160, § 28, defendant was charged with maliciously threatening A. B. to accuse him of crime ; and 1 C. V. Dorus, 108 Mass. 488 (1871). ^ C. v. Goodwin, 122 Mass. 19 (1877). 2 C. V. Goodwin, 122 Mass. 19 (1877). « Ibid, s C. V. Murpliy, 12 Allen, 449 (1866). ' Ibid. * C. V. Doi-us, 108 Mass. 488 (1871). ^ jbid. Chap. XII.] EXTOBTION. 177 the proof was that defendant charged A. B. with committing an indecent assault on his wife, and threatened to prosecute him unless he was paid $75, in satisfaction ; it was held that defendant might give in evidence the truth of the charge by the testimony of his wife, as tending to prove that it was not made maliciously ; as defendant, in such case, might lawfully demand reparation.^ Where the threatening language is susceptible of different meanings, the one intended must be ascertained by taking the words in connection with the speaker's conduct.^ On a trial for threatening to accuse one of burning a building insured, though the fact of the insurance must be proved, the policy need not be given in evidence. An insurance may be effected by parol, and any evidence is competent to prove it.'' A charge of criminally burning a building is provable by evi- dence that defendant hired J. S. to burn it.* In 0. v. Grood- win, 122 Mass. 19 (1877), certain evidence was held sufficient to convict a defendant as accessory to this offence. 1 C. a. Jones, 121 Mass. 57 (1876). 8 ibid. 2 C. V. Goodwin, 122 Mass. 19 (1877). « Ibid. 12 CHAPTER XIII. FALSE PRETENCES. (Gen. Sts. c. 116, § 14; c. 161, § 54 —St. 1863, c. 248.) § 223. The Offence. Fraudulently inducipg one to part with his property is the essence of the offence. Neither a promise nor an intention to repay affects its criminality, nor would the offence be purged by a subsequent restitu- tion. It is complete whien the goods have been obtained by the false representation.^ But it is not a public offence at common law to defraud by merely lying, without the use of any false weight, measure, or token.^ Assuming a fictitious name is a false pretence, but not within the statute if it had no influence in obtaining the money or the goods.^ It is no defence that the prosecutor on his side was trying to defraud.* Obtaining money by false pretences as for a charity is indict- able under Gen. Sts. c. 161, § 64.^ Though money be ob- tained by false pretences as a loan, it is none the less a fraud.^ Whether passing an uncurrent bill for goods and taking back good money in change, without any words being used, will amount to representing the bill to be worth its face, depends upon all the circumstances of the case.'' Defendant is liable though he obtained and held the goods as a broker.^ Gen. Sts. c. 161, § 54, requires that the false representations re- specting defendant's means and ability to pay should be in writing ; but ^ot his representation as to the validity and IC. w. Coe, 115 Mass. 481 (1874). ^ C. v. Whitcomb, 107 Mass. 486 = C. V. Warren, 6 Mass, 72 (1809). (1871). » C. V. Drew, 19 Pick. 179 (1837). « C. v. Coe, 115 Mass. 481 (1874). * C. u. Morrell, 8 Gush. 571 (18^). ' C. v. Stone, 4 Met. 43 (1842). ' C. V. Jeffries, 7 Allen, 548 (1863) Chap. Xni.] FALSE PRETENCES. 179 value of the securities offered; ^ and this section has no appli- cation to the case of fraudulently passing a promissory note as valid and genuine.* § 224. To whom. Though the false pretence be not made to A. but to A.'s agent, who pays the money to defendant out of A.'s funds by A.'s order, it is sufficient to convict.^ The offence is complete by passing a counterfeit bill, though the receiver turn out to be only a servant; defendant not knowing him to be such, and dealing with him as principal.* A false pretence to A. and B.'s clerk is a false pretence to A. and B.5 § 225. Special cases. Defendant, as agent for W., ob- tained from P. payment of money on W.'s account. Defend- ant's agency had been revoked by W., but P. had no notice of the revocation, and was therefore discharged by the pay- ment. Defendant was held liable Under the statute, though the effect of his act was to defraud W., and not P., from whom he obtained the money .^ If a sub-agent, under a fraud- ulent agreement to share with the agent, collect money from a debtor of their principal, or knowing it was the agent's in- tent to squander it and not pay it over to the principal, the intent to defraud is sufficiently proved.' The offence is com- mitted by passing a bill of a broken bank as worth its face, defendant knowing it to be nearly worthless, though the bill had really some value.^ An indictment is sustainable under Gen. Sts. c. 161, § 54, for obtaining money on a mortgage of personal property defendant falsely claimed to own.^ Indict- ment for obtaining goods by false pretences " in Worcester County." The pretences were made there, but the goods were sent to Vermont to fictitious addresses furnished by de- fendant, who received them there himself. If the names had been those of real persons who received them there the evi- dence would not have sufficed for conviction ;,but a delivery 1 C. V. Coe, 115 Mass. 481 (1874). 6 C. u. Harley, 7 Met. 462 (1844). 2 C. V. Parmenter, 121 Mass. 354 « C. v. Call, 21 Pick. 515 (1830). (1876). 7 Ibid. 8 C. V. Call, 21 Pick. 515 (1830). « c. „. Stone, 4 Met. 43 (1842). * C. ... Starr, 4 Allen, 301 (1862). » C. v. Lincoln, 11 Allen, 233 (1865). 180 OF PARTICULAR OFFENCES. [Pakt IH. to the carrier in Worcester County was in legal effect a de- livery to the consignee, that is to say, to the defendant him- self, and the offence was therefore held proved as charged.^ Defendant was charged with conspiring to get goods on credit under a false pretence of intending to take them to his store for sale in the ordinary course of business, with intent, after obtaining them, to secrete them, and to cheat and defraud the owner of them. This was held an offence indictable under Gen. Sts. c. 161, § 54, and St. 1863, c. 248, § 2. The false pretence was held not to be of a mere promissory charac- ter, but of an existing fact, to vsdt, defendant's present inten- tion.2 Indictment under Gen. Sts. c. 161, § 54, for obtain- ing by false pretences a signature to an instrument the false making of which would be punishable as forgery. Defend- ant, by false pretences, had induced A. to advance moneys for a joint business. A. proposed that articles of partnership should be signed, to which defendant assented, and they were signed by both. It was held that this evidence sufficed for conviction, though there was no delivery of the instrument to defendant ; this being necessary only in the case of negotiable instruments, which take effect only from delivery. For A.'s mere signature to the articles sufl&ced to make him liable to the obligations of the partnership.^ Though the opening of an account in a bank was part of the stratagem for defrauding, it was held not to be a false pretence per se. Neither was the drawing and presenta- tion of a check to the bank ; for perhaps defendant thought it would be paid. Otherwise, it seems, if defendant had passed the check to a third person, knowing it would not be paid.* Where defendant falsely told A. that he, defendant, had given him a $5 bill in payment of 20 cents the day before, and that A. had not given him back the change, and by this means obtaining from A. $4.80 ; it was held that defendant 1 C. w. Taylor, 105 Mass. 172 {1870). » C. u. Hutchinson, 114 Mass. 325 » C. V. Walker, 108 Mass..309 (1871). (1873). * C. u.Drew, 19 Pick. 179 (1837). Chap. XIII.] FALSE PRETENCES. 181 was not liable under Gen. Sts. c. 161, § 54 ; the fact being equally within the knowledge of both parties.^ § 226. The Indictment. An indictment under Rev. Sts. c. 126, § 32 (Gen. Sts. c. 161, § 54), must state all the material facts to be proved. It is not enough to say that defendant, intending to cheat A., knowingly and falsely alleged a certain watch to be gold, and so obtained from him such a sum of money ; the watch not being gold, and defendant knowing it. The sale of the watch must be set out, with its terms, and it must be alleged that A. was induced by the false pretences to give the money .^ But if the pretences stated are such as might have been effectual in accomplishing the fraud, it is sufificient, though it be not explicitly alleged that they were so ; ^ and it is sufficient if one of several false pretences set forth be fully negatived in the indictment.* An indictment charging, as the false pretence, that a certain coin was good gold coin, and that A., being deceived thereby, was thereby induced to take it as good, and to deliver to defendant certain bills in exchange, was held sufficient. It was objected that no bargain with A. was set forth, or any request to him to ex- change his property for the coin. But it was held that this was sufficiently expressed in the term " exchange," which im- ports a contract executed ; the case being thus distinguished from Q. V. Strain, 10 Met. 521 (1845).5 " Obtained by the false pretence of a mortgage of personal property, f46, of the money of A.," is sufficient. The kind of money, as bills, &c., need not be specified ; and an averment that the money was given in consideration of the mortgage is not inconsistent with the averment of the false pretence.^ But a charge of false pretences in the sale of a horse must set forth distinctly that the horse was bought, and that the prosecutor parted with his property by reason of the false pretence ; ^ and an indictment for obtaining a check from A. by false pretences, in exchange 1 C. V. Norton, 105 Mass. 172 (1870). 6 c. v. Nason, 9 Gray, 125 (1857). 2 C. V. Stone, 10 Met. f,2\ (1845). « C. v. Lincoln, 1 1 Allen, 233 (1865). 'C.v. Hulbert, 12 Met. 446 (1847). ' C. v. Lannan, 1 Allen, 590 (1861). * 0. V. Morrill, 8 Cash. 571 (1851). 182 OF PARTICULAR OFFENCES. [Part III. for defendant's note, must aver that defendant delivered the note to A., that A. received it, induced so to do by defend- ant's fraudulent representation, and did then and there de- liver to defendant the check.^ " Dry goods" of a value alleged is a sufficient description of the goods obtain^ed.^ Where the pretence charged was a sham certificate of stock, it vv^as held that the indorsements upon it need not be set out, they being no part of the certificate ; ^ and that though defendant also gave his own note, it need not be set out, it being only a collateral fact, and no part of the false representation.^ It was averred that the certificate was " of no value." This was held not to be a descriptive allega- tion ; and though it was proved to be of some small compara- tive value, the conviction was held good.^ An indictment averred that the bank bill delivered by defendant was " not a good negotiable note." This was held to be descriptive of a counterfeit note ; so that the evidence showing only that the bank had failed, the averment was deemed not proved.^ Under Rev. Sts. c. 126, § 32 (Gen. Sts. c. 161, § 54), an averment of false pretences whereby money was obtained from A. with intent to defraud B. is good.'^ Under Rev. Sts. c. 127, § 14 (Gen. Sts. c. 162, § 13), it is not necessary to men- tion any person whom it was intended to defraud.* But under Gen. Sts. c. 161, § 54, the indictment must expressly aver the intent to defraud. This cannot appear inferentially. The final clause, " So the jurors aforesaid," &c., " did, with in- tent to defraud," &c., is the statement of a legal conclusion, and is therefore merely argumentative.^ The word " knowingly " need not be used. " Designedly, by false pretence," is sufficient under the statute.^" " Did ob- tain goods with intent to cheat A. of the same goods," suffi- ciently shows that it was done " designedly." ^^ An averment 1 C. V. Goddard, 4 Allen, 312 (1862). ' C. ». Call, 21 Piek. 515 (1839). 2 C. V. Walker, 108 Mass. 309 (1871). ' C. u. Hulbert, 12 Met. 446 (1847). ' C.v. Coe, 115 Mass. 481 (1874). ' C. v. Dean, 110 Mass. 64 (1872). * Ibid. M C. V. Hulbert, 12 Met. 446 (1847). s Ibid 11 C. V. Hooper, 104 Mass. 549 (1870). « C. V. Stone, 4 Met. 43 (1842). Chap. XIII.] FALSE PRETENCES. 183 « that defendant obtained the goods " in his capacity of mer- chandise broker " does not vitiate. Since one cannot commit an offence in any particular capacity, the words are mere sur- plusage.^ Where a count states the false pretence to have been by a counterfeit bill, this is not double, as charging two offences.^ § 227. The Evidence. The indictment alleging " a sale upon credit," and the evidence showing that defendant gave his note at four months to the vendor, it was objected that this was proof of a present payment, under the law of Mas- sachusetts, contradicting the indictment. But the court said that the giving of a note is only primd facie evidence of pay- ment, the effect of which may be controlled by the circumstances of the case ; and that it was a sale on credit, whether the vendor charged the goods to defendant in account on a credit of four months, or took his note payable in four months with- out security.^ On a trial for obtaining a check from A. by false pretences it was held necessary to prove that the check ob- tained was of some value ; that is, that A. had money in the bank to meet it ; but ^at this might appear from all the facts of the case, and need not be specially proved.* On a trial for cheating by passing a broken bank bill, it was held not nec- essary, in order to show the bill to have been worthless, to prove that none of the stockholders were solvent, or that they had paid up all their stock. To prove that the bills were not worth their nominal value, and the fraudulent intent, evi- dence was held admissible that the bank refused to pay its bills, and that they did not pass current.^ Where the false statement charged is that defendant's firm did not owe over $300, evidence is not admissible of the insolvency of individ- ual members of the firm.^ The vendor may be allowed to testify that the credit was given to defendant's principal, al- though his bill of parcels was made out to defendant himself ; 1 C. V. Jeffries, 7 Allen, 548 (1863). * C. v. Coe, 115 Mass. 481 (1874). " C. V. Hulbert, 12 Met. 446 (1847). » c. „. Stone, 4 Met. 43 (1842). 8 C. K.Davidson, 1 Cush. 33 (1848). ^ c. v. Davidson, 1 Cash. 33 (1848). 184 or PARTICULAR OFFENCES. [Paet III. and to whom the credit was really given it is for the jury to decide on the whole evidence.^ Defendant's possession and use of other forged certificates, about the same time, are admissible to show the guilty knowledge.^ To prove the scienter, evidence is always admis- sible of defendant's having other similar bills and passing them.^ On a trial for obtaining a signature to a deed by false pretences, evidence was held admissible of defendant's previous conversation with a third person, as showing the animus, and as part of the res gestce,^ Defendant's insolvency at the time of the purchase is admissible to show the intent to defraud.5 In O. v. Ohesley, 107 Mass. 223 (1871), certain allegations, no exception having been taken to the indict- ment, were held sufficient at the trial to permit evidence of what the prosecutor paid money to defendant for, and what it was received for. § 228. For the defence. Where the prosecutor admits that the false name given him by defendant, which was one of the false representations charged, did not operate to induce him to deliver to defendant the goods, he being a stranger, it is the duty of the court to instruct the jury to lay this false state- ment out of the case.^ Evidence is not admissible of defendant's ability to repay .^ § 229. Variance. In 0. v. Coe, 115 Mass. 481 (1874), defendant had obtained a loan from A. by an altered certifi- cate of stock. On the trial it was held : (1.) That it was no ground of variance that the indorse- ments on the certificate had not been set out in the indictment; since they were no part of the certificate. (2.) Nor that defendant's note given with the certificate and produced in evidence was not set out ; for this was no part of the false representation, and was only a collateral fact. 1 C. V. Jeffries, 7 Allen, 548 (1863). ' C. <.. Jeffries, 7 Allen, 548 (1863). » C. V. Coe, 115 Mass. 481 (1874). « C. v. Davidson, 1 Cush. 33 (1848). s C. V. Stone, 4 Met. 43 (1842). T C. v. Coe, 115 Mass. 481 (1874). * C.u. Castles, 9 Gray, 121 (1857). Chap. XIII.] FALSE PRETENCES. 185 (3.) Nor that the certificate was shown to have some small value, the indictment alleging it to be " of no value ; " since this was not a descriptive allegation. In an indictment under Rev. Sts. c. 126, § 32 (Gen. Sts. c. 161, § 54), it was charged that defendant obtained money from P. by false pretences, with intent to defraud W., and that the money was P.'s property. The proof was that defendant, as agent for W., obtained money from P., who had no notice that defendant's agency for W. had been revoked ; so that P. was discharged by the payment. Held no variance.^ Under the same statute it was alleged that defendant's false statement was that " he didn't owe over $800." The statement proved was that " he did n't owe over $400." The variance was considered fatal.^ It was alleged that defendant pretended he had an order to purchase goods from a person in New York ; but it was not proved that he stated the order to have come from one " in New York ; " and the variance was held fatal.3 1 C. V. CaU, 21 Pick. 515 (1839). 3 C. v. Jeffries, 7 Allen, 548 (1863). 2 C. V. Davidson, 1 Gush. 33 (1848). CHAPTER XIV. FIGHTING. (Gen. Sts.c. 160, §§ 15-17.) FOECIBLE ENTKY. (Gen. Sts.c. 137, § 1.) § 230. Fighting. On an indictment for this offence under St. 1849, c. 49, § 1 (Gen. Sts. c. 160, § 15), it was held not necessary to prove that it was for a prize.^ Defendant is guilty of assault and battery though the fighting was by mutual consent. A.'s license to B. to beat him is no defence to a criminal prosecution, since the act was in violation of law ; though in a civil action, A.'s consent might reduce the damages.2 (Or rather, no civil action in such case would be maintainable. Volenti non fit injuria.') § 231. The Indictment, and the Evidence. An in- dictment for fighting under § 1 of this statute, alleging that defendant " by previous appointment," &c., "to fight, did fight with A.," is sufficient, without stating the particulars of the appointment, or when or where it was made.^ So as to the allegation under § 2, that defendant " was present as aid and second, did advise," &c., " in which A. by previous appoint- ment did meet and fight B." * Direct proof of an appoint- ment to fight is not necessary ; it may be inferred from cir- cumstances.^ It need not be proved that the appointment was made in Massachusetts, or at a different time and place from the fight itself.^ 1 C. V. 'Welsh, 7 Gray, 324 (1856). * Ibid. 2 C.v. Collberg, 119 Mass. 350 (1876). 6 c.v. Welsh, 7 Gray, 324 (1856). 8 Ibid. 6 Ibid. Chap. XIV.] FORCIBLE ENTRY. 187 § 232. Forcible Entry. (Rev. Sts. c. 104, § 1. Gen. Sts. c. 137, § 1.) Here, as in England, an indictment lies for a forcible entry and detainer, both at common law and under the statute. 1 To maintain it, it is necessary to prove circum- stances of violence, or of putting in fear of bodily hurt, by weapons, or by threats, or from a crowd.^ § 233. The Indictment. It is sufficient to charge the ofEence to have been committed " unlawfully, with force and arms and with a strong hand ; " for this implies terror and violence.^ 1 C. u. Shattuck, 4 Cush. 141 (1849). 2 Ibid. 3 Ibid. CHAPTER XV. FOEGEEY. (Gen. Sis. c. 162 -- St. 1874, c. 78.) § 234. The Offence. The common law as to forgery was not superseded by Rev. Sts. c. 127 ^ (Gen. Sts. c. 162). Forgery at common law consists of a fraudulent making or alteration of a writing to the prejudice of another man's right. It may be of a printed as well as of a written instrument. So the fraudulent counterfeiting of a railroad ticket is forgery at common law.^ And so is the false making of an accept- ance on a conditional order for the delivery of goods.^ In 0. V. Eai/, 3 Gray, 441 (1854), it was held that after St. 1852, c. 37, forgery at common law was not punishable by confine- ment in the state prison, and it being thus only a misde- meanor, accessories before the fact were all principals. (But every species of statutory forgery is thus punishable. Rev. Sts. c. 127 ; Gen. Sts. c. 162.) § 235. Under statutes. To constitute forgery under St. 1804, it was not essential that the person whose name was forged should have any goods in the drawee's hands.* And the following order, " To C . Give J. K. ten dollars, N.," is an order for money within Gen. Sts. c. 162, § 1 ; and it is not requisite that C. should be under any obligation to N.* Forging a receipt in full is punishable under the same section.® In the forgery of a check, it is not essential that the signature should be so well imitated as to be likely to de- 1 C. V. Ayer, 3 Cash. 150 (1849). * C. v. Fisher, 17 Mass. 46 (1821). 2 C. V. Ray, 3 Gray, 441 (18.54). 6 Q, o. Kepper, 114 Mass. 278 (1873). * C. V. Ayer, 3 Cush. 150 (1849). « C. v. Talbot, 2 Allen, 161 (1861). Chap. XV.] FORGERY. 189 ceive the bank officers.^ It is not the less forgery that de- fendant, when uttering the forged note, had means, and in- tended to take it up at maturity ; ^ or that the forged writing was by the hand of another person under defendant's dic- tation and at his request.^ The essential elements of the offence under Gen. Sts. c. 162, § 1, punishing the false mak- ing of a promissory note with intent to injure or defraud, are the falsity of the instrument, which is its purporting to be the note of some one else than the signer, and defendant's in- tent that it shall pass as such.* ' The fraudulent intent must accompany the making of the instrument.^ The mere prep- aration of a note to be used fraudulently, taking advantage of extrinsic circumstances facilitating the cheat, is "making a false instrument." Thus, if defendant gets a note from " L. & Co.," a firm of no credit and unknown, with intent to pass the same as the note of " L. & Co.," " a large firm doing business on Franklin Street, Boston, and having a large man- ufactory in Charlestown," it is sufficient, even if the party defrauded knew nothing of either firm but through defend- ant's representation.^ The offence may be committed by the use of a fictitious name. But the signing of another name that one has adopted without intent to deceive, as " Mark Twain," for Samuel L. Clemens, is not forgery. On the other hand, signing one's own name would be forgery, if it were done fraudulently, and for the purpose of deceiving as to the signer's identity. But not so as to the signing of a name formerly adopted, in the absence of an intent to defraud.^ One cannot acquire a right to use a fictitious name for a fraudulent purpose by so using it any number of times ; and therefore such user cannot be set up for the purpose of show- ing a particular act not to be a forgery .^ The false making of an instrument which is void on its face, or merely frivolous, ^G.v. Stephenson, H Cush. 481 ^ C. i>. Foster, lU Mass. 311 (1873). (1853). 6 Ibid. 2 C. D.Henry, 118 Mass. 460 (1875). ' C. u. Costello, 120 Mass. 358 (1876). ' C. u. Foster, 114 Mass. 311 (1873). 8 ibjd. * Ibid.; C. V. Costello, 120 Mass. 358 (1876). 190 OP PARTICULAR OFFENCES. [Pakt III. is not forgery, since it could not operate to defraud or have been intended to. Otherwise, where it is one of a series of acts with intent to defraud, though the other steps to consum- mate the fraud have not been taken.^ § 236. Bank bills. Under Rev. Sts. c. 127, § 2 (Gen. Sts. c. 162, § 2), punishing the uttering of forged paper, a bank bill of another State is a " promissory note ; " and having posses- sion of an altered note is having possession of a " forged note."^ Under the same statute, a bank bill is a " promissory note," though not made payable to any one named, or to bearer.^ Uttering forged notes under Gen. Sts. c. 162, § 2, is not the of- fence described in § 4, which relates to bank notes of this State.* § 237. What is not forgery. A merchant intrusts his clerk with blank indorsements, which defendant obtains by false pretences, and afterwards uses. This is not forgery.^ Signing a note with the name of a fictitious firm, with intent to defraud, falsely asserting that the firm consisted of A. and defendant, was not forgery under Rev. Sts. c. 127 (Gen. Sts. c. 162).^ " Reed of the Surgeon General my discharge and check for $100," is not an " accountable receipt," under Gen. Sts. c. 162, § 1. It is not an acknowledgment of the receipt of anything to be accounted for.^ " I certify A. B. has placed card advertisements in my office agreeably to contract." A forgery of this is no crime, either by statute or at common law ; not showing on its face that any one can be defrauded by it, and the defect not being supplied by averment.^ The note set out was drawn by A. B. "to the order of A. B.," and was charged as a promissory note. But, no indorsement appearing upon it, it was held that there was no contract, and therefore no forgery.^ An indictment against a justice of the peace for altering a writ issued by himself after service and before the return day, 1 C. V. Costello, 120 Mass. 358 (1876). « C. v. Baldwin, 11 Gray, 197 (1858). 2 C. V. Woods, 10 Gray, 477 (1858). ' C. v. Lawless, 101 Mass. 32 (1869). 8 C. V. Paulas, 11 Gray, 305 (1858). » q „ Hinds, 101 Mass. 209 (1869). 4C.r. Dole, 2 Allen, 165 (1861). ^ C. v. Dallinger, 118 Mass. 439 6 Putnam v. Sullivan, 4 Mass. 45 (1875). (1808). Chap. XV.] FOKGBRY. 191 not charging the offence as forgery, was held not sustainable. If the act was any ofEence at all, it was forgery.^ § 238. The Indictment. The gist of forgery is the false making with intent to defraud; so that an indictment for forging an acquittance need not allege that the goods were de- livered in consideration of it.^ An indictment for forging a bond to dissolve an attachment need not set forth how such a bond could have been used to defraud.^ A count charged the forgery of an indorsement on a forged promissory note. The note was signed A. B., and made payable to A. B.'s order. It was objected that until the indorsement it was not legally a note. But the count was held good, the allegation being taken to refer to the character of the instrument when in- dorsed.* The having possession of several forged notes may be charged in one count without duplicity.^ § 239. The copy of the instrument set forth. It was held in O. v. Stone, 1 Mass. 54 (1804), that where the forged instrument is set out " in the words and figures following," a variance would be fatal ; and so if the word " tenor " be used. But now, by St. 1864, c. 250, § 1, no variance arising on written or printed matter shall vitiate, " provided that the identity of the instrument is evident, and the purport thereof is sufficiently described to prevent all prejudice to the defend- ant." And the former rule was not held to apply to words, numbers, or letters in the margin of a bank bill ; they being no part of the bill ; ^ nor to indorsements on a note ; they be- ing no part of it.'' Where the forged note was set out " ac- cording to the purport and effect following," and in the note as set forth the words were "I promise," instead of " I prom- ised," as in the note in evidence, it was held no variance. For the court would construe " I promised " as " I promise." Otherwise if the form " of the tenor following " had been used.* 1 C. V. Mycall, 2 Mass. 136 (1806). 6 c. v. BaUey, 1 Mass. 62 (1804) ; 2 C. V. Ladd, 15 Mass. 526 (1819). C. v. Taylor, 5 Cush. 605 (1850). 8C. ... Costello,120Mass.358(1876). 7 C. «. Ward, 2 Mass. 397 (1807); * C. u. Dallinger, 118 Mass. 439 C. «. Adams, 7 Met. 50 (1845). (•875). » c. V. Parmenter, 5 Pick. 279 (1827). « C. V. Thomas, 10 Gray, 483 (1858). 192 OP PARTICULAR OFEBNCBS. [Past III. In Q. V. Moss, 2 Mass. 373 (1807), it was held that an indict- ment for uttering a forged promissory note need not set forth the date of the note, nor when it was payable. (But it is to be observed that in that case defendant had swallowed the note on being arrested ; so that a more complete description of it could not be given.) It is enough if the forged instrument, as set forth, appears on its face to be a note " for the payment of money." For where a part of a statutory description is omitted, the defect may be supplied by other averments from which it may be collected. ^ § 240. The Evidence. In 0. v. Hutchinson, 1 Mass. 7 (1804), it was held that the party whose instrument was alleged to be forged was not competent to prove the forgery? unless the instrument was produced at the trial ; but after- wards, where, on a trial for, passing a forged instrument, it was proved that the paper had been secreted to protect the offender, the person whose name was forged, and who had copied the instrument was held competent to prove the forgery.2 And in C. v. Feck, 1 Met. 428 (1840), it was held that a party whose signature was alleged to be forged was a competent witness to prove the forgery and the destruction of the note, though a civil action was pending against him, to which his only defence was the forgery of the note, as his in- terest was only in the question, and the verdict in the crimi- nal suit could not be given in evidence in the civil suit. (Now, under Gen. Sts. c. 131, § 13, no persons are disqualified for testifying on the ground of interest or crime.) Defendant's possession of a forged receipt to himself is strong evidence that he forged it, or had had it forged.^ In 0. v. Stevens, 10 Mass. 181 (1813), on a trial for altering a money order payable to defendant, his confession that another person did it with his assent was held sufficient for conviction. (The offence was then only misdemeanor, in which all present consenting or aiding, are held as principals.) The fact that a note was forged within the county is not legally inferable from its 1 C. V. Castles, 9 Gray, 123 (1857). ' C. v. Talbot, 2 Allen, 161 (1861). » C. V. Snell, 3 Mass. 82 (1807). Chap. XV.] FORGEBY. 193 being uttered there.^ The prosecution is not bound to rely- on any admission of defendant. Thus, on a trial for the forgery of three notes, there being evidence tending to show that they were forged by tracing, the prosecution was allowed to present in evidence thirty other notes uttered by defend- ant about the same time, and so made on one pattern as to tend to show that they also were forged by tracing. This evidence was held competent, though defendant, in order to prevent its admission, offered to admit that he passed the thirty notes, and that, if they were forged, he knew them to be so.^ Where defendant gave evidence to show that the notes in question had been given to him in confidential ac- commodation, and were not intended to be entered on the maker's books, evidence was held admissible in rebuttal that the notes were all taken up by defendant before their matu- rity.^ In the same case, it .was held that the prosecution need not prove to which of three counts ' each of the three forged notes belonged ; each count being provable by each of them. Defendant's assumption of the name of another, or of a ficti- tious name with a false description as applied to himself, is evidence to show his intention to avoid responsibility for his act.* § 241. For the defence. On a trial for forging a bond to dissolve an attachment, to which two fi.ctitious names were signed as sureties, the prosecution gave evidence that no such person could be found. It was held that defendant was en- titled to give evidence to show that they had left the State, and that he had made vain efforts to obtain their testimony.'^ On a trial for obtaining a check by means of a note with a forged signature, defendant's witness cannot testify to the maker's having said that he had authorized the signature, for this would be mere hearsay ; though in a civil action this ad- mission would be competent against the maker.^ Where the alleged maker of the note in question had testified that he had 1 C. V. Parmenter, 5 Pick. 279 (1827). ' C. v. Costello, 120 Mass. 358 (1876). 2C. w. Miller, 3 Gush. 243 (1849). 6 c. „. Costello, 119 Mass. 214 (1875). ' Ibid. 6 c. V. Goddard,2 Allen, 148 (1861). 13 194 OF PARTICULAR OFFENCES. [Part III. never given to any one a note in blank to be filled up, evi- dence was held inadmissible in rebuttal that a note had been seen veritten upon what purported to be the maker's name indorsed ; there being no proof of the genuineness of the in- dorsement.i § 242. Variance. Where, on a trial for the forgery of a railroad ticket, which was described in the indictment as " to be used continuously, without stopping," but the ticket in evidence was marked "good for this day only," the variance was held fatal.2 (But this was before St. 1864, c. 250, § 1, relating to variances.) In an indictment for the forgery of a bank bill, if, in setting forth the bill, the name of the State be omitted, the variance will be fatal, though it appear only on the margin ; for the name of the State fixes the law govern- ing the contract and so forms part of it.^ 1 C. u. Miller, 3 Gush. 243 (1849). 5 C. v. Wilson, 2 Gray, 70 (1854). 2 0. V. Ray, 3 Gray, 441 (1854). CHAPTER XVI. HIGHWAY. {Gen. Sts. cc. 45, 46.) HOUSE OP ILL-FAME. {Gen. Sts. c. 87, §§ 6 et seq. ; c. 165, § 13.) IDLE AND DISOEDEELT PBESONS. ( Gen. Sts. c. 165 §§ 28 et seq. — & 1878, c. 160.) ILLEGAL PISHING. {Gen. Sis. cc. 49, 83 — St. 1866, c. 187 — St. 1867, c. 344— ,Si!. 1869, c. 3S4: — St. 1871, c. 281— St. 1873, c. 137 — St. 1874, c. 82.) ILLEGAL VOTING. {Gen. Sis. c. 6, § 10 ; c. 7, §§ 28 et seq. — 5'i. 1874, c. 356 — iSi!. 1876, c. 172.) § 243. Higliway. The penalty imposed by Rev. Sts. c. 51, § 1 (Gen. Sts. c. 77, § 1), applies for not turning to the right of the travelled part of the road, though room enough be left to the other party to pass with safety and convenience.^ The driver of a team in front of a horse-Qar on a horse-car track, not turning off to let the horse-car pass, if there be room, is punishable for a wilful and malicious obstruction of the road, though his entry on the track was from no other motive than his own convenience.^ Horse-cars can move only on one pre- cise line, and by the grant of the franchise to the company they had a right to move on it with the usual rate of speed al; which passengers are carried by horses. 1 C. V. Allen, 11 Met. 403 (1846). ^ c. v. Temple, 14 Gray, 69 (1859). 196 OP PARTICULAR OFFENCES. [Pakt III. In an indictment for nuisance to a highway defendants were charged with omitting to remove their dwelling-house outside of the limits of the way as widened and relocated, under Gen. Sts. c. 43, §§ 13, 39. It was held that the i-easonable time allowed to take off " timber, wood, or trees," applies to build- ings, walls, fences, growing crops, and everything inconvenient or unsuitable to be left on a highway. ^ In the same case, the commissioners had given permission for the bouse to remain " during its natural life ; " and it was held that if this indefi- nite permission was valid, then defendants had committed no offence ; and that if it was invalid, then there had been no direction to remove, and no offence had been committed. It was further held that the only consequence of an omission to remove is the forfeiture of the property left on the way, which may then be removed by the proper authorities ; and under Gen. Sts. c. 43, § 14, there being no proof that the public had entered upon and taken possession of the land, there was no nuisance. § 244. The indictment. An indictment charging the erec- tion on a public highway of " a number of sheds and build- ings, 100 feet long, 16 broad," is insufficient to sustain a con- viction, in not stating some definite number.^ (But under St. 1864, c. 250, § 2, no mere formal defect invalidates, ex- cept on demurrer or motion to quash.) An indictment for not repairing a highway need not set out its termini ; though this would be more conformable to the rules of good plead- ing.^ An indictment for not turning to the right of the road need not set forth a particular description of the road. At least, the objection could. not be taken in arrest of judgment.* A highway known by two different names may be described by either of them.^ § 245. House of Ill-fame. Letting a tenement to a woman of ill-fame for a bawdy-house is an offence at common law ;® which is not repealed by St. 1793, which only adds a new 1 C. e. Noxon, 121 Mass. 42 (1876). * 0. v. Allen, 11 Met. 403 (1846). 2 0. V. Hall, 15 Mass. 240 (1818). 6 c. v. Noxon, 121 Mass. 42 (1876). 3 C. V. Newbury, 2 Pick. 51 (1823). ^ C.v. Harrington, 3 Pick. 26 (1825). Chap. XVI.] HOUSE OF ILL-FAME. 197 remedy.i Suffering a single act of illicit intercourse in a house is not keeping a house of ill-fame, nor a tenement re- sorted to for prostitution and lewdness under Gen. Sts. c. 87, §§ 6, 7.2 The offence is complete though not committed for lucre.^ It is sufficient if defendant only aided in keeping the house. In misdemeanors, all are principals.* A feme covert may be indicted alone for this offence ; ^ even though her husband live with her in the house, which is hired, furnished, and supplied by him.^ Where a husband is indicted alone, it is no defence that the house belonged to his wife and that she carried on the business ; he living and exercising control there.'^ On a trial for keeping a disorderly house, it is suffi- cient to prove the disorders to be frequent ; and it need not be proved that all persons residing near or passing by it are annoyed.^ It is no defence that there was no disturbance of the peace.^ § 246. The indictment. Under St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), a charge of " keeping a house of ill- fame, gambling, and prostitution " is not double. The uses alleged are not distinct offences, but only different modes of nuisance, which is the substantive offence. A conviction on proof of one of them would bar an indictment on the others ; and a use for one of these purposes is sufficient.^" Under Rev. Sts. c. 130, § 8 (Gen. Sts. c. 165, § 13), the indictment need not allege that the house was resorted to by men and women, or that it was kept for gain.^i A charge of keeping a house of ill-fame on a certain day named, " and on divers other days " will support a conviction.^ An indictment under St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), averring the keeping of a house of ill-fame " to the common nuisance," &c., need not expressly allege that defendant " kept a common nui- 1 Jennings K. C. 17 Pick. 80 (1835). » C. o. Davenport, 2 Allen, 299 2 C. t;. Lambert, 12 Allen, 177 (1866). (1861). 8 C. V. Wood, 97 Mass. 225 (1867). 9 C. v. Gannett, 1 Allen, 7 (1861 ). 4 C. V. Gannett, 1 Allen, 7 (1861). ii C. v. Kimball, 7 Gray, 328 (1856). 5 0. V. Lewis, 1 Met. 151 (1840). u C. v. Ashley, 2 Gray, 356 (1854). 6 C. V. Clieney, 114 Mass. 281 (1873). 12 Wells v. C. 12 Gray, 326 (1859). ' C. u. Wood, 97 Mass. 225 (1867). 198 OF PAETICULAK OFFENCES. [Part III. sance." ^ In an indictment for letting a house of ill-fame, the time of the contract is immaterial ; time not being of the essence of the offence.^ But some certain day must be alleged of the making of the lease. " On the 15th of April and five months preceding that day, then and there let," &c., is insuf- ficient ; ^ and such an indictment must state the name of the lessee or give a reason for not doing so, and must aver that he accepted the lease.* A charge of keeping a disorderly " tene- ment " is insufficient, as charging no offence known to the law. A " tenement " may mean land, or any corporeal inher- itance.^ § 247. The evidence. In a prosecution for keeping a dis- orderly house, evidence is admissible of its being kept as a dance house ; but that women of bad repute frequented it and solicited men to leave with them for prostitution, which they often did ; in order to show the character and deport- ment of the persons resorting there.^ And evidence is admis- sible of doors having been broken while defendant occupied the house, and of defendant's saying he would repair them, if nothing would be said about it.'' In a prosecution under St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), for keeping a tene- ment " used for prostitution, lewdness," &c., both the char- acter of the women in the house and their conversation there are competent evidence. But conversation outside of the house after they came out of it, the inmates not being present, is inadmissible to prove what took place in the house.^ § 248. Idle and Disorderly Persons. In Q. v. Carter, 108 Mass. 17 (1871), certain facts were held sufficient to con- vict defendant of being an idle person, without visible means of support, under St. 1866, c. 235, §§ 1, 3. It need not be shown what proportion of time is misspent ; it is sufficient if an ha- bitual misspending of time is proved.® Evidence of the use 1 Wells K. C. 12 Gray, 326 (1859). « c. w.Cardoze, 119 Mass. 210 (1875) ; 2 C. V. Harrington, 3 Pick. 26 (1825). C. v. Gannett, 1 Allen, 7 (1861). s C. V. Moore, 11 Gush. 600 (1853). ' C. v. O'Brien, 8 Gray, 487 (1857). * Ibid. 8 C. V. Kimball, 7 Gray, 328 (1856) ; 6 C. V. "Wise, 110 Mass. 181 (1872). C. v. Davenport, 2 Allen, 299 (1861). " C. (/. Sullivan, 5 Allen, 511 (1862). Chap. XVI.] ILLEGAL FISHING. 199 of profane language is admissible.^ G. v. Sullivan, 5 Allen, 511 (1862), states what is sufficient to constitute the charge under Gen. Sts. c. 165, § 28. §249. Illegal Fishing. Toaniadictmentunder St. 1869, c. 384, § 31, forbidding the catching of smelt with a seine, it was objected that the ofEence is not committed by defendant's taking smelt while fishing with a seine for herring or ale- wives. Held, that defendant was liable if he intended to catch smelt, though he also intended to catch herring.^ In 0. V. Vincent, 108 Mass. 441 (1871), was discussed what con- stitutes a " great pond," within St. 1869, c. 384, of which the commissioners of inland fisheries may make a lease ; and in that case it was held as follows : that §§ 9, 10, include all kinds of fish, whether migratory or not ; that a lease of a great pond, under § 9, brings the pond within § 19, punishing the fishing in it without permission of the proprietors ; that it is sufficient for conviction if the occupation has not been aban- doned by the lessee, whether he has fulfilled or not the pro- visions of the lease ; that the lessee's right is not limited to that portion he is authorized to occupy with inclosure and ap- pliances ; that the terms of the lease are in the discretion of the' commissioners ; and that it is no objection to a lease that it provides that the inclosure and appliances should not debar ingress or egress " at proper times ; " the clause in § 9, " at proper places," not necessarily implying the non-debarring " at all times." Under the same statute, stocking a pond with new fish and closing the outlet with a wire screen, is a sufficient occupation for artificial cultivation. It is not necessary for the lessee to occupy any part of it with appliances or inclosures to give him an exclusive right to the whole pond.^ Under § 7, the owner of a pond or of parts of a pond created by artificial flowage has the exclusive control of the fisheries therein, and such a pond cannot be leased by the commissioners ; but under § 8, a great pond of naturally over twenty acres may 1 C. V. Murray, 14 Gray, 397 (1850). « C. v. Weatherhead, 110 Mass. 175 2 C. V. Look, 108 Mass. 452 (1871). (1872). 200 OB" PARTICULAR OFFENCES. [Part III. be leased by them, though it have been increased by artificial flowage.-' § 250. The indictment. The proper proceeding is by in- dictment, and the commissioners of fisheries need not be the prosecutors.^ All persons who were in the same boat are jointly indictable, though each one was fishing on his own account.^ § 251. The evidence. On a trial for unlawful fishing in a great pond it is no variance that the proprietors named in the complaint are shown to have had others associated with them in the fishery.* § 252. Illegal Voting. Double voting is a misdemeanor at common lav7.^ Evidence of defendant's having consulted counsel as to his right to vote and that their opinion was favorable is admissible, but is not conclusive of defendant's want of knowledge.® Under Rev. Sts. c. 4, § 6 (Gen. Sts. c. 7, § 28), defendant's admission that he voted is an admission that he voted wilfully, but not of his guilty knowledge.^ § 253. The indictment. The following averments were held to sufficiently describe the meeting at vrhich the offence was committed : " At a meeting of the qualified voters of various wards of the city of Salem " (the day stated) " for the election of municipal officers " (the offices named) ; and that defendant committed the offence " at Ward One in said Salem at the election aforesaid." ^ § 254. The evidence. On a trial for illegal voting, an averment of a " meeting of the people of A." was held sup- ported by proof of a meeting of those qualified to vote.^ On a trial for false answers to selectmen touching defendant's right to vote, proof of their acting as such is sufficient.^** Where the charge was a false answer by defendant for the purpose of having his name put on the list of voters, and to 1 C. V. Tiffany, 119 Mass. 300 (1875). 6 Q. M.Bradford, 9 Met. 268 (1845). 2 C. V. Look, 108 Mass. 452 (1871). ' Ibid. ' C. i;. Weatherhead, 110 Mass. 175 ^C.u. Desmond, 122 Mass. 12 (1877). (1872). s C.i). Shaw, 7 Met. 52 (1843). 4 Ibid. w Ibid. 6 C. V. Silsbee. 9 Mass. 417 (1812). Chap. SVI.] ILLEGAL VOTING. 201 get permission to vote, and it was proved that his name was already on the list, the variance was held fatal. ^ Where the law required a residence in the voting district of six months next before the election, evidence of defendant's having re- sided till within seven months of the election in another place does not shift upon defendant the proof of legal domicil. But, in that case, slight evidence of defendant's not having changed his residence till within the six months, the fact be- ing a negative one, in the absence of all positive evidence in rebuttal, would become cogent.^ 1 C. V. Shaw, 7 Met. 52 (1843). 2 c. v. Bradford, 9 Met. 268 (1845). CHAPTER XVII. LAECENY AND KECEIVEES. (Gen.. Sts. c. 161, §§ 15 et seq.) § 255. The Offence. If one to whom a load of packages is delivered for transportation fraudulently takes one of them away, it is larceny ; the same as if he had broken a package and abstracted articles from it.^ A miller received barilla to grind. He fraudulently retained a part, returning a mixture of barilla and plaster of Paris. Held to be larceny.^ A laborer employed in discharging a cargo is not a bailee of it ; and so, if he take and carry away any part of it, he is guilty of larceny.^ Defendant took a horse and wagon in A. County by a trespass, meaning to return them to the owner. After driving a certain distance in A. County he changed his mind, and drove into B. County for the purpose of having the team sold at auction as his own property. It was held that the larceny was complete in A. County.* In Massachusetts, under Rev. Sts. c. 126, § 14 (Gen. Sts. c. 161, § 15), and St. 1845, c. 48, stealing from a vessel in the day time is a distinct offence from stealing in the night time.° On a trial for the larceny of pantaloons from a shop it appeared that defendant told the salesman that " he had made it all right with the owner," to whom the salesman had referred him. On this statement, which was false, the salesman allowed him to take the pantaloons away. It was contended for defendant that this was not larceny, but only obtaining the goods on false pretences. But held, that as there was no intent of the owner 1 C. V. Brown, 4 Mass. 580 (1808). * C. v. White, 11 Cush. 483 (1853). 2 C. U.James, 1 Pick. 375 (1823). ^ C. v. McLaughlin, U Cush. .598 » C. V. Doane, 1 Cush. 5 (1848). (1853). Chap. XVII.] LARCENY AND RECEIVBES. 203 to part with the possession of the goods, and as defendant was not his vendee, the offence was larceny.^ Taking money or goods under an honest belief of having a legal right to do so is not larceny. But the mere fact of the owner's being in- debted to the taker to the full value of the goods taken con- stitutes no defence.^ Defendant, agreeably to a preconcerted plan, met A. at the foot of a staircase and received from him money that A. had stolen from defendant's lodger. He was held to be liable as principal, having been constructively pres- ent at the larceny .3 Obtaining property by personating the owner of it is larceny at common law and by statute ; * and where a boy was sent to A.'s office with money for A., and defendant, who was there, answered that he was not A., it was held that defendant was nevertheless guilty of larceny if he obtained the money from the boy by leading him to believe that he was authorized to receive it for A.^ Where defend- ant fraudulently obtained a check which he converted to his own use, as also a soldier's discharge, which he had not asked for, but which had been delivered to him with the check, it was held that he was properly convicted of a larceny of the discharge, as well as of the check.^ Taking and concealing a horse that was trespassing on defendant's premises, for the purpose of either getting the reward expected to be offered for him, or of buying him of the owner for less than his value, is larceny ; the object being to deprive the owner of his prop- erty, or of a part of its value.'' (But is not this the object of the taking and keeping in various cases which are only civil trespasses ?) The stealing of goods under the eye or personal care of one in a building is not larceny " in a building ; " they not being under the protection of the building. But contra if the goods be stolen while the owner is in bed, un- dressed and asleep ; they being then under the protection of the building.8 1 C. V. Wilde, 5 Gray, 83 (1855). 6 c. v. Whitman, 121 Mass. 361 2 C. V. Stebbius, 8 Gray, 492 (1857). (1876). » C. V. Lucas, 2 Allen, 170 (1861). 6 c. w. Lawless, 103 Mass. 425 (1869). * C. V. Collins, 12 Allen, 181 (1866). ' C. v. Mason, 105 Mass. 163 (1870). * C. u. Smith, in Mass. 429 (1873). 204 OP PARTICULAR OFFENCES. [Pakt III. The owner of property attached by a constable takes it from him. This would be larceny if the motive were to de- fraud the constable or the attaching creditor ; but not where the owner intended to leave and did leave with the officer suf- ficient to satisfy the attachment.^ To make the finder of lost property guilty of larceny in appropriating it to his own use, it is necessary to show : (1.) That he had the felonious intent at the time of taking it ; a mere subsequent conversion of it not being larceny ; (2.) That he had reasonable means of ascertaining who the owner was.^ Larceny of money from a messenger of a Telegraph Company incorporated under the laws of New York. It was objected that there was no proof that the company had a legal right to do business in Boston. But it was held sufficient if the jury found that the company was incorporated in New York and attempted to do business in Boston ; in which case the company had a special property in the money stolen. ^ § 256. Bringing stolen goods into the county. Stealing goods in A. County and bringing them into B. County is lar- ceny in B. County ; and the rule applies as well to property created by statute as to that recognized by the common law.* Bringing into this State goods stolen in a foreign country is not larceny here.^ But in Q. v. Oullins, 1 Mass. 116 (1804), it was held that stealing goods in Rhode Island and after- wards bringing them into Massachusetts was larceny in Mas- sachusetts. The case was likened to that of stealing goods in one county and carrying them into another county of the same State. And afterwards in 0. v. Andrews, 2 Mass. 14 (1806), where goods had been stolen in New Hampshire and brought into this State, it was held that the receiver was pun- ishable in the same manner as if the goods had been stolen in Massachusetts. Both these cases were affirmed, and the same doctrine held, in 0. v. Solder, 9 Gray, 7 (1857), and in 0. v. 1 C. V. Greene, 111 Mass. 392 (1873). * C. v. Rand, 7 Met. 475 (1844). 2 C. V. Titus, 116 Mass. 42 (1874). 6 C.w.Uprichard, 3 Gray,434 (1854). 5 C. V. Whitman, 121 Mass. 361 (1876). Chap. XVII.] LARCENY AND EECBIVERS. 205 White, 123 Mass. 430 (1877). (These decisions have no foundation either in law or in common sense. There is no analogy between counties and States as to the point in ques- tion. Counties of the same State are under the same gov- ernment and the same laws. The other States are different sovereignties and have different laws. Courts have no ju- risdiction of offences committed under another sovereignty. Bringing into one State goods stolen in another is not larceny at common law, nor by statute, and courts have no authority to make it so. England and Scotland are under one govern- ment, which the States of our Union are not in respect to their domestic concerns ; yet stealing goods in Scotland and carrying them into England is not larceny in England. Rex V. Anderson, 2 East P. C. 772. Suppose a certain taking be not larcenous in New Hampshire, but would be in Massachu- setts ; could an act not felonious when committed be made so by any matter ex post facto ? The absurdity of the doctrine in question is clearly shown in the able dissenting opinion of Thomas, J., in C. v. Holder, 9 Gray, 7 (1857). The opinion of the majority of the court in that case was delivered by Shaw, C. J., who, strangely enough, in the previous case of C. v. Uprichard, 3 Gray, 434 (1855), had strongly argued against the same doctrine when sought to be applied to a larceny of coin in Nova Scotia, afterwards brought by the thief into Massachusetts. It is not easy to understand how that eminent judge could not perceive that his reasoning applied just as forcibly to cases where the larceny had been committed in another State of the Union. He observed, inter alia, that the commission of a crime in Nova Scotia was no violation of the law of Massa- chusetts; that if we looked to the law of Nova Scotia, de- fendant might be punished for what was not a crime in Mas- sachusetts ; and if we looked to the law of Massachusetts, he might be punished for an act which was not criminal in Nova Scotia where it was committed. The logical result of the doctrine that the mere bringing by the thief into one State goods that had been stolen in an- 206 OP PARTICULAR OFFENCES. [Pakt III. other is larceny in the State into which they are brought, is clearly shown by Ashe, J., in State v. Brown, Haywood's R. p. 100 (1794) : " If a man steal a horse in one part of the continent and goes with him to another through several States, the culprit, according to the several laws of each State, being guilty of the taking in each, may be cropped in one, branded and whipped in another, imprisoned in a third, and hanged in the fourth, all for the same offence." As to the legal fiction that the bringing into B. County of goods stolen in A. County is larceny in B. County, the mean- ing and effect of it is simply that the thief may be tried and punished in the county into which he has brought the goods. To this there can be no serious objection, since the defendant would be tried by the same law and undergo the same penalty as if indicted in the county where the offence was actually committed.) In Q. V. Dewitt, 10 Mass. 154 (1813), the goods had been stolen in Suffolk County and brought by the thief into Cum- berland County, where defendant was concerned with the thief in the possession and disposal of the goods. A convic- tion of larceny was held good. (Defendant was liable as a re- ceiver in Cumberland, but not as the thief ; and his conviction of the principal offence was an act of mere arbitrary power.) In (7. V. Trimmer, 1 Mass. 476 (1805), it was held that a wife could not be indicted for larceny jointly with her hus- band ; she being legally presumed to be under his control, ex- cept in heinous cases. But this decision was overruled in 0. V. Murphy, 2 Gray, 510 (1854), which holds that the legal presumption of coercion is not conclusive, and may be rebut- ted by evidence. Under St. 1851, c. 156, § 4 (Gen. Sts. c. 161, § 15), a wife stealing in her husband's house is not liable for larceny " in any building." The clause in aggravation was held not to apply to the offender's own house, and the hus- band's house being, in law, his wife's also.^ A deaf and dumb person may be convicted of larceny .^ § 257. Subjects of larceny. Doves are ferce naturce, and 1 C. V. Hartnett, 3 Gray, 450 (1854). " C. c.. Hill, 14 Mass. 207 (1817). Chap. XVH.] LAECENY AND BECBIVBRS. 207 not the subject of larceny except when in custody of their owner ; as in a dove-house ; ^ but larceny may be committed of pea-fowl ; ^ and of illuminating gas.^ In C. v. Rand, 7 Met. 475 (1844), it was held that bank bills that had been redeemed and were in possession of the bank's agent were the subject of larceny. The bills were of some value for the pur- pose of a reissu'e ; in the hands of a bond fide holder the bank would have been liable to pay them ; and the bank had act- ual possession of them through its agent. A memorandum book given by a tailor to his employer by the piece is an " ac- count book," and the subject of larceny under Rev. Sts. c. 126, § 17 (Gen. Sts. c. 161, § 18). And so is money though it have been illegally acquired.* Intoxicating liquor, though bought illegally, and with intent to sell illegally, and while in the course of illegal transportation, is a subject of larceny.^ (The owner's title being good against the world until forfeited in a direct proceeding by the State.) § 258. Larceny from the person. Under Rev. Sts. c. 126, § 16 (Gen. Sts. c. 161, § 17), a larceny from the person need not be either " openly and violently " nor " privily." It is enough that at the time the article was taken there was an intent to appropriate it, though the owner was not dissenting.^ Defendant, in picking a pocket, did not reach the purse ; which fell out in a struggle with the ofl5cer who arrested him while in the act. Held, not to be larceny, but only an attempt to commit it, because the purse had not come into defendant's actual possession ; though it was held that an actual asporta- tion would not have been essential.'^ § 259. Custody and possession. In O. v. King, 9 Gush. 284 (1852), a servant was sent by his master with a check, to obtain payment of it at the bank. After receiving the money from the bank, the servant gave A. (who knew to whom the money belonged) |400 of it, and appropriated the 1 C. V. Chace, 9 Pick. 15 (1829). 6 c. „. Coffee, 9 Gray, 139 (1857). 2 C. «. Seaman, 8 Gray, 497 (1857). ^ q „ Dimond, 3 Cash. 235 (1849). » C. V. Shaw, 4 Allen, 308 (1862). ' C. v. Luckis, 99 Mass. 431 (1868). * C. V. Roarke, 10 Gush. 397 (1852). 208 OF PARTICULAR OFFENCES. [Part III. rest to his own use. The servant was indicted for larceny, and A. as receiver ; but it V7as held that, on receipt of the money from the bank, the servant's possession of it not being a mere custody for his master, the conversion was embezzle- ment, and not larceny, and that the charge against A. as receiver must therefore fail also. (The soundness of this decision seems questionable. If the servant" had stolen the check, it would have been indisputably larceny ; for while in his hands it was in the constructive possession of his master. It is not easy to see why the money he was sent after was not received and held by him in the same capacity in which he had held the check ; that is, as the servant of his master ; in which case his possession was, in law, that of his master. If I send ray servant to market with money to buy me a leg of mutton, and after buying the meat he run away with it, would that not be a larceny of the meat ?) If a servant appropriate his master's goods that are simply in his custody, it is larceny, because the possession is legally in the master.^ Goods in a store were stolen at night by a clerk, who was not a salesman, but had occasionally acted as such. This was held to be lar- ceny, and not embezzlement, the taker not having even the custody of the goods.^ In G. V. Brigham, 123 Mass. 248 (1877), which was a case of larceny of goods attached by a deputy sheriff, the facts in evidence, taken together, were held not to constitute, in point of law, an abandonment of possession by the officer. It was further held that the abandonment was a question of fact for the jury, who had decided it under instructions that were not objected to. § 260. Receivers. A receiver is guilty if he took the goods under circumstances sufficient to satisfy a man of ordinary intelligence and caution that the property had been stolen.^ For receiving stolen goods, knowing them to have been stolen, in order to aid in their concealment, defendant is liable as re- ceiver under Gen. Sts. c. 161, § 43 ; though the goods were 1 C. v. Berry, 99 Mass. 428 (1868). s Q. v. Finn, 108 Mass. 466 (1871). 2 C. V. Davis, 104 Mass. 508 (1870). Chap. XVIL] LARCENY AND RECEIVERS. 209 received out of friendship, without benefit to the receiver.^ In C. V. Y/KiU, 123 Mass. 430 (1877), where the property stolen consisted of United States bonds, received by defendant from the thief's agent (it being assumed, for the purposes of the case, that the theft had been committed in Massachusetts), it was held that the receiver could not set up in defence an alteration in the property after it was stolen ; and that the erasure by the thief of the payee's name, and the substitution of another in the bonds, was immaterial. The bonds still re- mained the property of the payee, who could have recovered upon them. § 261. The Indictment. In 0. v. Adams, 7 Gray, 43 (1856), the averment " did steal and carry " was held insuf- ficient. The charge should C. v. O'Connell, 12 Allen, 451 2 C. o. Smith, 1 Mass. 245 (1804). (1866). 8 C. V. Sawtelle, U Cush. 142 (1853). « C. v. Gavin, 121 Mass. 54 (1876). * C. V. Gallagher, 16 Gray, 240 ( 1 860). ' C. «. Richards, 1 Mass. 337 (1805). Chap. XVII.] LAKCENY AND EECEIVEKS. 211 whole, without giving their numbers or denominations, or their form or tenor.i Thus, " sundry bank bills, the banks un- known to the jurors, amount and value $38 in all," is a suf- ficient description.^ Though an indictment cannot charge facts in the alternative, a count for the larceny of " bank bills or promissory notes " is good ; for bank bills are also promis- sory notes.^ And a bank note may be charged as a " bank bill."* A bank bill "of the goods and chattels of A." Though a bank bill is not properly "goods and chattels," these words may be struck out as surplusage.^ In an indictment for the larceny of a promissory note, the following was held to be a sufiicient description : " One promissory note, value $300, and one piece of paper, value $300," though there was evidence before the grand jury for a more particular description.^ (^Sed queer e ; the reason why a particular description of stolen bank bills or of coin is dis- pensed with is because it is usually impossible to be ob- tained ; but this reason is obviously not applicable to prom- issory notes.) In C. v. Butterick, 100 Mass. 1 (1868), cer- tain United States bonds were held to be sufficiently de- scribed. § 265. Larceny in a building. A count for stealing from a " refreshment saloon " charges only simple larceny ; for non constat that the saloon was a building.'^ A charge of stealing goods " in a certain building, and in possession of J. S. being found," is a sufficient charge of stealing " in a building." ^ § 266. Ownership. Under Rev. Sts. c. 138, § 11 (Gen. Sts. c. 172, § 12), property stolen from a pledgee may be de- scribed as property of the pledgor : and this rule, it was said, is the same at common law.^ Under the same statute, goods of which A. and B. are tenants in common may be described as the goods of A. ; i" and an averment that money stolen was the property of a wife is sustainable, though it belonged to 1 C. u. Stebbias, 8 Gray, 492 (1857). « c. v. Brettan, 100 Mass. 206 (1868). 2 C. V. Grimes, 10 Gray, 470 (1858). ' C. u. Mahar, 8 Gray, 469 (1857). " Brown v. C. 8 Mass. 64 (1811). = C. v. Smith, 111 Mass. 429 (1873). * Eastman o. C. 4 Gray, 416 (1855). » C. v. O'Hara, 10 Gray, 469 (1858). ^ Ibid. 10 C. V. Arrance, 5 Allen, 517 (1862). 212 OF PAKTICULAK OFFENCES. [Pakt III. her husband ; it being in her actual possession.^ Where B. was the holder of the stolen check, which was payable to the order of A., an averment that it was A.'s property was held good ; B. holding it only for transmission.^ The property of goods may be alleged to be in the consignee if they were de- livered to a carrier for him, whether the carrier was desig- nated or not.^ Where the general owner of property is in- dicted for the larceny of it from a constable who had attached it, it may be charged as the property of the constable.* § 267. Receivers. The same particularity is not required against a receiver as against the thief. Thus, allegations that the goods were " feloniously stolen," and of defendant's " knowing them to be feloniously stolen," without adding that they were " taken and carried away," are sufficient as against a receiver.^ In an indictmfent against a receiver, one blue pilot-cloth coat was held to be sufficiently described as " one coat," and one piece of cassimere as " 30 yards of cloth."^ The thief and the receiver mav be jointly indicted.'^' An indictment for receiving stolen goods need not allege by whom they had been stolen ; ^ but if it be averred that they were stolen by A. B., the averment is descriptive of the of- ence, and must be proved as laid.^ § 268. The Evidence. On a trial for stealing bank bills December 5, 1845, evidence was held admissible of defend- ant's possession of them in March and April following ; from which, with other circumstances, the jury might infer his guilt. And this evidence was held admissible, even though the bills were not identified, to show large sums of money in defendant's possession disproportionate to his means or gains.^" The owner of goods stolen may testify to their identity with- 1 C. I/. McLaughlin, 103 Mass. 435 « c. v. Campbell, 103 Mass. 436 (1869). (1869). 2 C. u. Lawless, 103 Mass. 425 ' C. w. Adams, 7 Gray, 43 (1856). (1869). 8 c. a. Slate, U Gray, 60 (1858); C. 3 C. V. Sullivan, 104 Mass. 552 w. Hogan, 121 Mass. 373 (1876). (1870). 9 C.v. King, 9 Gush. 284 (1852). 1 C. u. Greene, 111 Mass. 392 (1873). i" C. v. Montgomery, 11 Met. 534 5 C.v. Lakeman, 5 Gray, 82 (1855). (1846). Chap. XVII.] LABOENY AND RECEIVERS. 213 out producing them.^ Where several larcenies are connected together, forming one transaction, evidence of one is admissi- ble to show the character of the others. So other goods may- be proved to have been stolen at the same time, and may be taken into the jury room.^ The stolen goods were found in a trunk. A receipt found in it belonging to defendant was held admissible in evidence, but not sufficient fer se for conviction ; ^ and so, also, as to two men having been seen taking a trunk to where the goods were found, and of their being of about defendant's size.* So also that the articles stolen were found a year afterwards in the house of defendant's father, where defendant occasionally lived.^ To prove the condition of arti- cles stolen they need not be produced in evidence.^ If the jury are satisfied that defendant either had authority, or hon- estly believed he had authority, to take the goods, that is an end of the case. But if they are not so satisfied, all his con- duct subsequent to the taking is admissible in evidence on the question whether the taking was felonious.^ And where the property in question had been lost, and found by defendant, his acts and declarations subsequent to the finding were held admissible, if offered only as tending to prove that the origi- nal taking was with felonious intent.^ Possession of the stolen articles immediately after the theft, defendant giving an un- satisfactory explanation of it, is presumptive evidence that he was the thief .^ Larceny of railroad tickets. Defendant said he had bought them of the ticket agent ; who denied this, and proved the theft of the package to which they belonged. This was held sufficient for conviction, as a case of property re- cently stolen where defendant had given no sufficient explana- tion of how he came by it.^" But where the general owner, indicted for stealing his own goods from an attaching consta- 1 C. o. Hills, 10 Gush. 530 (1852). 1 C. v. Hurd, 123 Mass. 438 (1877). 2 C. V. Riggs, 14 Gray, 376 (1860). 8 c. v. Titus, 116 Mass. 42 (1874). 3 C. K. Annis, 15 Gray, 197 (1860). » C. v. McGovty, 114 Mass. 293, * Ibid. (1873). 6 C. u. Parmenter, 101 Mass. 211 M C. v. Randall, 119 Mass. 107 (1869). (1875). 6 C. V. Pope, 103 Mass. 440 (1869). 214 OF PARTICULAE OFFENCES. [Part HI. ble, offered to testify that he purposely left 1500 or worth of goods, enough to satisfy the attachment debt, the evidence was held admissible, as corroborative of the intent stated by him.^ Goods were alleged to have been stolen by defendant and one A. The prosecution, having proved that defendant and A. were together at certain times, is not thereby limited to proof of the larceny at those times.^ On the trial of a miller for stealing barilla sent to him to be ground, the prosecution is not bound to produce the truckman who carried it to and from the mill, or to prove that it was not adulterated on the way ; although the adulteration was proved by circumstantial evidence alone.^ On a trial for larceny, an officer, who was a witness for the prosecution, was allowed to be asked " what he did " after he was told by the owner of the property stolen of the commis- sion of the offence. His answer was " Started for defendant." The question and the answer were held to be admissible.* (^Sed qucere ; the obvious purpose of the question was to ob- tain the unsworn statement of the owner, which was clearly inadmissible in evidence. This decision upheld the doing by indirect means what the law did not permit to be done di- rectly.) In O. V. Carroll, 123 Mass. 411 (1877), certain evidence, taken together, was held sufficient to prove the ownership of the goods. § 269. Evidence inadmissible. The prosecutrix, to show the amount of money in her hands that had been stolen from her, offered receipts of third parties to whom she had made payments. These were held inadmissible, as hearsay.^ A laborer employed in discharging a cargo is not a bailee of the cargo nor of any part of it. So, if he takes it, it is larceny. Evidence that the mates from whom defendant received it claimed the right, though mistakenly, to retain it, was re- jected. It was said, however, that this evidence would have 1 C. V. Greene, 111 Mass. 392 (1873). » C. u. Moulton, 4 Gray, 39 (1855). 2 C. V. Hills, 10 Gush. 530 (1852). 6 c. u. Cannon, 97 Mass. 337 (1867). » C. 0. James, 1 Pick. 375 (1823). Chap XVII.] LARCENY AND EBCEIVBES. 215 been admissible on the question of intent on behalf of the mates.^ (If admissible for the mates, semble, it was equally so for defendant, who stood in full privity with them in re- spect to the property taken.) § 270. Value. St. 1852, c. 4, conferred jurisdiction upon justices of the peace in cases of larceny from a building where the value of the property stolen did not exceed f 10. It was held that this did not deprive the Common Pleas Court of their former general jurisdiction in larceny ; and therefore that in a trial in the latter court no evidence was necessary to prove the value to be over f 10.^ No direct evidence of value is necessary to warrant a conviction. It is enough if the jury can infer from the circumstances that the property stolen had some value, however small.^ Thus, where a witness stated that the bills stolen were bank bills of a neighboring State, and that he received them there, this was held to be sufficient evidence to authorize the jury to find the bills to be of some value, as current in Massachusetts.* So, in larceny of a horse, would be proof that the horse was a sorrel horse, of 900 pounds weight, with a long tail, and had been driven a long distance. So, in larceny of a wallet, the conviction was held good though no formal evidence of its value had been offered.^ So, in larceny for stealing a soldier's discharge, the jury may find it of some value, though no evidence of any has been given, and the discharge has not been inspected by the jury; the article being commonly known.^ But where different kinds of articles are stolen and only the collective value of the whole is alleged, there can be no con- viction for taking a part ; for non constat that the part taken had any value. Thus, where the charge was the stealing of bank bills, and also of United States notes " amounting to $90 and value $90," it was held not sustained by proof of the stealing of United States notes alone.'' And this principle 1 C. V. Doane, 1 Gush. 5 (1848). ^ c. v. Burke, 12 Allen, 182 (1866). 2 C. u. Byce, 8 Gray, 461 (1857). « C. v. Lawless, 103 Mass. 425 8 C. V. Riggs, 14 Gray, 376 (1860). (1869). « C. 0. Stebbins, 8 Gray, 492 (1857), ' C. v. Cabill, 12 Allen, 540 (1866). 216 OP PARTICULAR OFFENCES. [Pakt HI. applies in some cases even when the articles are all of one kind. As, if the larceny charged be of " 12 handkerchiefs, value $6," a conviction on proof of the taking of any number less than twelve would be bad. Though the twelve handkerchiefs be worth collectively $Q, it does not follow that each one of them had value.^ § 271. Variance. A charge of larceny of printed sheets is not supported by proof of the larceny of " books," though the sheets had been bound into books by defendant himself before converting them.^ A charge of the larceny of six bottles of whiskey is not sustained by proof of the larceny of liquor not in bottles. The averment is matter of description, re- quiring to be proved as laid.^ A charge of stealing an animal implies that it was a live one ; and so is not supported by proof of the stealing of a dead one.* But where A., B., and C. were jointly indicted for an at- tempt to steal, and it was al'eged that each one of them put his hand in the pocket of J. S., and the proof was that A. alone did this, it was held no variance. It was sufficient that the others were participating in the attempt, for all three were thus liable as principals.^ § 272. Larceny by embezzlement. Although Rev. Sts. c. 126 (Gen. Sts. c. 161) enacts that certain acts of embezzle- ment shall be deemed larceny, under an indictment simply charging larceny, no evidence of acts of embezzlement is ad- missible ; for defendant is not apprised by the indictment of the precise nature of the offence sought to be proved against him;^ neither will evidence of embezzlement under the stat- ute support a charge of larceny at common law.^ § 273. Receivers. The prosecution may show what kind of a shop defendant kept, as to the likelihood of the place be- ing adapted for the keeping of stolen goods, though the goods in question were never there.^ A charge of receiving goods 1 C. V. Lavery, 101 Mass. 207 (1869). \ C. v. Simpson, 9 Met. 138 (1845). » C. V. Merrifield, 4 Met. 468 (1842). ' C. u. King, 9 Gush. 284 (1852). » C. ■/. Gavin, 121 Mass. 54 (1876). 8 c. v. Campbell, 103 Mass. 436 * C. V. Beaman, 8 Gray, 497 (1857). (1869). « 0. V. Fortune, 105 Mass. 592 (1870). Chap. XVII.] LARCENY AND EBCEIVBES. 217 stolen before a specified day is sustained by proof of their being stolen after that day.i Where the stolen goods were found in a place to which defendant and one A. had equal ac- cess, it was held that this fact was admissible, in connection with other evidence, on the question of defendant's guilty knowledge.^ Evidence is inadmissible for a receiver that he was drunk when the goods were received.^ (The evidence was offered as tending to disprove the scienter, and semhle, should have been admitted. Defendant's guilty knowledge was an essential element of the offence charged ; and to that issue his condition of mind when he received the goods was certainly relevant. Though drunkenness is no excuse for crime, evidence of it may be material to the question whether a crime has been committed.) The conviction, on his own confession, of a thief for stealing certain property, is not ad- missible in evidence as proof of the stealing against the re- ceiver, indicted alone ; * but a receiver's guilty knowledge may be found by the jury on the testimony of an accomplice, cor- roborated by proof from other sources of defendant's posses- sion of the goods, whether such possession was stated by the accomplice or not.^ Where the charge was receiving goods stolen " by a person unknown from another person unknown," evidence is inadmissible for defendant that the same grand jury that found the indictment had indicted one A. for steal- ing the same goods, alleging the ownership in B. and C. The court could not judicially know that the two larcenies were one and the same.^ On a trial for receiving from one Salvini boots and shoes knowing them to be stolen, it was held that defendant might ask his witness " what was Sal- vini's reputation and standing in the community and among those by whom he was known, as to his being a regular and honest dealer in boots and shoes ? " '^ 1 C. V. Campbell, 103 Mass. 436 * C. u. Elisha, 3 Gray, 460 (1854). (1869). s C. V. Savory, 10 Cush. 535 (1852). 2 C. V. Maguire, 108 Mass. 469 6 c. v. Hill, 11 Cush. 137 (1853). (1871). ' C. V. Gazzolo, 123 Mass. 220 8 C. V. Finn, 108 Mass. 466 (1871 ) (1877). CHAPTER XVIII. LEWDNESS AND LASCIVIOUS COHABITATION. (Gen. Sts.c. 165, § 6.) § 274. The Offence. An indictment for open lewdness is not supported by evidence of secret acts.^ Unlawful cohabitation, under St. 1784, was held not proved by one act between a married man and a single woman.^ A husband obtains a divorce in Massachusetts on the ground of desertion. After the divorce his wife goes to Ver- mont, marries there, and then she and her second husband come and reside in Massachusetts. It was held that if he was liable at all under Rev. Sts. c. 130 (Gen. Sts. c. 165), it would be under § 2, for unlawful cohabitation, and not under § 4, for lascivious cohabitation.^ § 275. The Evidence. Under St. 1784, where one of the parties was alleged to be married, the marriage was held to be provable only by the clergyman or the witnesses.* 1 C. «. Catlin, 1 Mass. 8 (1804). * C. v. Littlejohn, 15 Mass. 163 2 C. V. Calef, 10 Mass. 153 (1813). (1818). 3 C. V. Hunt, 4 Cash. 49 (1849). CHAPTER XIX. LIBEL. {Gen. Sts. c. 129, § 77 ; c. 172, § 11.) § 276. The Offence. Libel has always been an indictable offence in Massacbusetts.^ The constitutional provision for liberty of the press does not affect prosecutions for the abuse of it.2 Publishing a correct account of judicial proceedings with aspersive comments is libel ; ^ and so is a publication that a juror agreed to stake out the amount of damages on a game of draughts.* Where the libel was published in a news- paper in another State which was usually circulated in Massa- chusetts, and the issue containing it actually so, it was held a publication in Massachusetts.^ § 277. Justification. In 0. v. Blanding, 3 Pick. 304 (1825), before St. 1826, authorizing the truth to be given in evidence, it was held that in a prosecution for charging one with misconduct as an inn-keeper, the truth was not admissi- ble ; but long before that, in C. v. Olap, 4 Mass. 63 (1808), it had been held that a defendant would be justified if only the truth were told of elective public officers or candidates for office, in a decent manner, with a view to influence an election. And after St. 1826, in Q. v. Snelling, 15 Pick. 337 (1834), it was held that as legal malice is wilfully doing injury to another, no ill will or design need be proved ; and that there- fore evidence was not admissible to rebut the presumption of malice that defendant's object was to attack vicious persons for the public good. But now by Gen. Sts. c. 172, § 11,' the I C. V. Chapman, 13 Met. 68 (1847). * C. v. Wright, 1 Cush. 46 (1848). " C. V. Blanding, 3 Pick. 304 (1825). 6 Q. „. Blanding, 3 Pick. 304 (1825). » Ibid. 220 OF PARTICULAR OFFENCES. [Part III. truth may be given in evidence, and such evidence shall be deemed sufficient justification, unless malicious intention is proved. Under St. 1826, evidence of defendant's belief of the truth of his statements, on credible testimony, was deemed inadmissible. 1 Retraction or apology is no defence, going only in mitigation of sentence.^ § 278. The Indictment must not only set forth the libel, but must set out, and profess to set out, the very words. Quotation marks are not sufficient for this purpose ; nor are the words " purport and effect and in substance ; " and these words cannot be rejected as surplusage. But " tenor " im- plies an exact copy.^ If the matter of the libel is not libellous per se, an indictment that does not state extrinsic facts show- ing it to be so is insufficient.* The additions of the party libelled need not be set forth.^ f § 279. The Evidence. The publisher of the newspaper in which the libel appeared is legally presumed to have been the publisher of the libel ; and this presumption is not rebutted by evidence that he never saw the libel,-and was not aware of its publication till it was pointed out to him.® Evidence of the newspaper having been bought at a certain place, and at a certain time within the statute of limitations, is sufficient proof of the time and place charged in the indictment.^ § 280. Malice. The malice essential in libel does not im- ply personal ill will.^ To show express malice, other libels are admissible not materially different from the one charged.s § 281. Variance. Although the innuendo enlarge the meaning of the libel, provided the words of the libel them- selves suffice, the aggravation in the innuendo may be disre- garded as surplusage.^" A charge of publishing a libel Novem- ber 21 is supported by evidence of its publication November 19, and would be by evidence of any other day within the 1 C. V. Snelling, 15 Pick. 337 (1834). ^ q. v. Morgan, 107 Mass. 199 2 C. V. Morgan, 107 Mass. 199 (1871). (1871). ■^ Ibid. 3 C. V. "Wright, 1 Cush. 46 (1848). » C. v. Blanding, 3 Pick. 304 (1825). 4 C. V. Child, 13 Pick. 198 (1832). 9 C.v. Harmon, 2 Gray, 289 (1854). 6 C. u. Varney, 10 Cush. 402 (1852). i" C. v. Snelling, 15 Pick. 321 (1834). CiiAP. XIX.] LIBEL. 221 statute of limitations. It would be otherwise if the indict- ment alleged the publication as " bearing date November 21." In that case the variance would be fatal; the date being part of the description.^ An entire omission in the indict- ment of the date and signature, if not affecting the meaning, causes no variance.^ Since St. 1864, c. 250, § 1, where the identity of the newspaper is evident, and it is so described as to prevent any prejudice to defendant, it is not a material variance that while the libel is charged to have been published by defendant and one A., the proof shows it to have been pub- lished by defendant alone. ^ § 282. Evidence in defence. In 0. v. Blanding, 3 Pick. 304 (1825), it was held that the truth was not, in general, admissible in evidence, and that when it was not, a malicious intent was inferred by the law ; and that when evidence of the truth was admitted by the court, the jury must judge if the publication was made with good motives and for justifi- able ends. Now, however, by Gen. Sts. c. 172, § 11, the truth is allowed in all cases to be given in evidence, and con- stitutes a sufficient justification, in the absence of proof of a malicious intention. Under this provision (Rev. Sts. c. 133, § 6), it was held that the burden of proof of good motives and justifiable ends is on defendant.* Evidence is not admissible that defendant, in a conversation with the witness, treated the matter of the libel as a joke, originated by himself. The public scandal still remained, however lightly the defendant may have treated it; and it is not material that the party libelled should have suffered from injured feelings. More- over, such evidence would be competent only under an offer to give the truth in evidence, it being in the nature of an ad- mission.^ Evidence of the general bad character of the per- son libelled is inadmissible.^ 1 C. u. Varney, 10 Cush. 402 (1852). * C. u. Bonner, 9 Met. 410 (18^5). 2 Cw. Harmon, 2 Gray, 289 (1854). ^ C. v. Morgan, 107 Mass. 199 ' C. V. Morgan, 107 Mass. 199 (1871). (1871). ° C. V. Snelling, 15 Pick. 337 (1834), 222 OF PAETICULAE OFFENCES. [Part HI. Where the libel consists of a general charge of official mis- conduct, and defendant offers to give the truth in evidence, . the court may order him to specify instances in a bill of par- ticulars, and no other instances than those specially set forth will be allowed to be proved.^ I C. V. Snelling, 15 Pick. 337 (1834). CHAPTER XX. LICENSE LAWS. {Gen. Sis. c. 88; c. 172, § 10 — St. 1864, c. 121.) ATJCTIONEEES. (Gen.Sts.c.bQ) DOGS. {Gen. Sts. c. 88, §§ 52 et seq. — St.l863,c. llS — St. 1864, c. 299 — St. 1865, c. 197 — St. 1867, c. 130 — St. 1871, c. 41 — St. 1872, c. 330— St. 1877, c. 167.) HAWKEES AND PEDLEES. (Gen. Sts. c. 50,%^ 13 etseq.— St. 1862, c. 178 — 5l!. 1864, c. 151 — St. 1866, c. 197 — St. 1870, c. 331 — St. 1878, c. 216.) INNKEEPEES. {Gm. Sts. c. 84, § 5 ; c. 85, § 5 ; c. 88 — St. 1870, c. 338 — 1878, c. 241.) PILOTS. (G^en. ,Sl!s. c. 52 — .S'i. 1862, c. 176 — 51;. 1869, c. 236 — 5*. 1871, c. 351.) § 283. Auctioneers. The servant or substitute of a li- censed auctioneer is not liable for selling without a license in the auctioneer's temporary absence during a sale. The ques- tion is always one of intention for the jury ; whether such sale was a mere cover to enable a stranger to sell without a license.^ § 284. Dogs. The owner of a dog is not liable to the 1 C. v. Harnden, 19 Pick. 482 (1837). 224 OF PARTICULAR OFFENCES. [Paet III. penalty imposed by § 5, of St. 1867, c. 130, for " keeping a dog," unless he were the keeper.^ A defendant is liable for keep- ing a dog^ under St. 1867, c. 130, § 1, if the dog is not de- scribed in the application for a license so as to be identified. Thus, a license to keep " a yellow and white dog named Dime " gives no authority to keep a black Newfoundland dog named "Nigg." ^ § 285. Hawkers and Pedlers. Selling, though without previous intention, is a violation, of St. 1846, c. 244 (Gen. Sts. c. 50, §§ 13 et seq.'y. But a travelling agent delivering goods that have been bought of his principal is not liable, even if he furnish a larger quantity of goods to a customer than have been ordered.^ So, an agent soliciting orders is not liable under Gen. Sts. c. 50, § 27, though delivering ; he making no sales himself, and carrying only samples of the article. Oc- casionally delivering a sample to a purchaser does not change the character of the business ; neither does the sale of a sin- gle article, if not within the usual scope of the business.* Under § 24, a hawker and pedler is not liable for not pasting his name, residence, and the number of his license on his par- cels. If no vehicle is used, these must be placed on every par- cel, however carried.^ Under St. 1820, c. 45 (Gen. Sts. c. 50, § 15), prohibiting the pedling of jewelry, plain gold ear- rings and knobs were held to be embraced in the term " jew- elry." 6 § 286. Innkeepers. In 0. v. Wetherhee, 101 Mass. 214 (1869), the special facts proved were deemed to constitute the " presuming to be an innkeeper without having a license," under Gen. Sts. c. 88, § 1. § 287. Pilots. Under Rev. Sts. c. 32 (Gen. Sts. c. 52), a master has a legal right to pilot his own vessel ; being liable only for pilotage fees to the pilot offering. But if no Boston pilot offer in time, he may employ a stranger, who would 1 C. V. Canada, 107 Mass. 405 * C. v. Farnura, 114 Mass. 267 1871). (1873). 2 C. V. Brahany, 123 Mass. 245 » C. k. Cusick, 120 Mass. 183 (1876). (1877). ■ « C. u. Stephens, .14 Pick. 370 8 C. V. Ober, 12 Cush. 493 (1853). (1833). Chap. XX.] LICENSE LAWS. 225 then incur no penalty. On the other hand, if a Boston pilot does offer in time, the master incurs no penal liability, but the stranger does.^ A stranger pilot indicted cannot defend on the ground that the Boston pilot did not show his warrant in offering. This would often be impracticable.^ Under Gen. Sta. c. 52, § 24, a Boston pilot's offer in the night is sufficient if he approach and hail, and make all the tender that time and circumstances admit, if heard on board, whether answered or not.^ Payment by the master of pilotage fees is not a penalty, and so no bar to an indictment against the person piloting.* Nantucket pilots have no right to pilot into Boston harbor.^ § 288. The indictment. Under Rev. Sts. c. 58, § 2 (Gen. Sts. c. 88, §§ 74 et seq.'), imposing a penalty for setting up cer- tain exhibitions without a license, an averment that defendant "did set up and promote" does not render the indictment double.^ It is sufficient to allege that defendant " did set up and promote " the exhibition, describing it, contra formam statuti ; this implying it to be " unlawful," and " unlawfully set up." ^ It is a sufficient description that it " purported " to be an exhibition of certain performances.^ " Was a pedler and sold, " &c., is not sufficient. It must be averred that de- fendant " went about selling," &c., as a pedler." ' § 289. The evidence. The fact of defendant's having ap- plied for a license to keep a dog is admissible against him on a charge of keeping one without license.^" A complaint for keeping an unlicensed dog may allege a period of many suc- cessive days, and be sustained by proof as to any part of the period alleged. ^^ No record being kept by the Court of Ses- sions of licenses issued to inn-keepers, minutes of the court are admissible in evidence.^^ Such a license raises the pre- 1 C. V. Ricketson, 5 Met. 412 (1843). 8 jbid. ' Ibid. » C. V. Bruckheimer, 14 Gray, 29 8 Ibid. (1859). * Ibid. 1" C. V. Gorman, 16 Gray, 601 (1860). ' Ibid. " C.W.Canada, 107 Mass. 405 (1871). « C. V. Twitchell, 4 Cash. 74 (1849). '^ q, „_ Bolkom, 3 Pick. 281 (1825) 7 Ibid. 15 226 OP PARTICULAE OFFENCES. [Pakt III. sumption that the court had granted it on proper eTidence, such as a recommendation of the selectmen.^ As a Nan- tucket pilot has no right to pilot into Boston harbor, when on trial for this offence his warrant is not admissible, even to show that he was lawfully on board the vessel.^ It was held in the same case that the statement before the Commissioner of Pilots of the captain whose vessel defendant had piloted was inadmissible for the prosecution. 1 C. V. Bolkom, 3 Pick. 281 (1825). ^ c. v. Kicketson, 5 Met. 412 (1843). CHAPTER XXI. LORD S DAY. Gen. Sts. c. 84 — St. 1862, c. 152 — ^i!. 1865, c. 253 — St. 1863, c. 143 - St. 1864, c. 79 — /Sf. 1877, c. 232.) § 290. The Offence. Under Rev. Sts. c. 50, § 1 (Gen. Sts. c. 84, § 1), leaving a store door unlatched on Sunday, so as to admit persons for the purpose of doing business there, is " keeping open." ^ Though the entrance be closed, if all who want may get in to buy, it is sufficient.^ It was held that the statute. of 1816, forbidding the keeping open of shops dur- ing " any part of the Lord's Day or evening," meant Sunday, and the evening of that day after sunset.^ One may be con- victed of selling liquor on Sunday, though liable also to be punished for the sale of liquors ; for one may be punishable for two distinct offences committed in one and the same act.* Gathering sea-weed on the beach at 10 o'clock Sunday even- ing at a distance from the highway is not a work of " neces- sity," it not being to save property already reduced to posses- sion, though unless then gathered, it would be floated away and lost ; ^ and work to save a crop that is suffering is not one of legal " necessity" nor " charity ; " and the question of the moral fitness of the act cannot be submitted to a jury.^ The provision in Gen. Sts. c, 84, § 9, excepting certain acts from the penalty, cannot be extended to legalize the keeping open of a shop on the Lord's Day.^ 1 C. v. Lynch, 8 Gray, 384 (1857). * C. v. Trickey, 13 AUen, 559 2 C. V. Harrison, 11 Gray, 308 (1866). (1858). 6 C.D.Sampson, 97 Mass. 407 (1867). s C. . Roberts, 108 Mass. 296 (1871). 3 C. V. Hersey, 2 Allen, 173 (1861). « Ibid. « C. V. James, 99 Mass. 438 (1868). ' C. v. Casey, 11 -Cush. 417 (1853). * C. V. Dorsey, 103 Mass. 412 (1869). « C. v. Webster, 5 Cush. 295 (1850). » C.t). York, 9 Met. 93 (1845). Chap. XXV.] MURDER. 245 cumstances are shown there is no room left for presumption, and if malice is not then proved beyond a reasonable doubt the jury must acquit ; for the burden of proof is always on the prosecution.! Evidence of defendant's aiding and abet- ting will support a charge of murder with defendant's own hand.2 The finding of the body in a river in the heart of a county, and in such a situation as to show that it must have been thrown and not drifted there by currents, is sufficient evidence to prove the commission of the murder in that county.^ § 313. For the defence. Defendant may give evidence of his general character, which may be contradicted by the pros- ecution ; but not till defendant has put it in issue can the prosecution go into it.* Though evidence of good character is competent on a trial for murder, it is of less weight than in offences of a lower grade.^ The killing being proved, the defence of accident, of necessity, or of infirmity, must be satis- factorily made out by defendant, unless the proof arise out of the evidence against him.® Where the murder had been com- mitted after an assault by the deceased on defendant, evidence of the deceased being a quarrelsome, vindictive, and fighting man of great strength, was held to be inadmissible on the question of defendant's provocation and being put in bodily fear.'^ (It is not easy to perceive why this evidence was not relevant and admissible.) § 314. Insanity. After evidence has been given of defend- ant's insanity, the prosecution may rebut by evidence of his sanity. The presumption of sanity is sufficient for the pros- ecution until rebutted by preponderating evidence of insanity.* Evidence to prove insanity by defendant's conduct subsequent to the murder, to be admissible, must be connected with evi- dence of mental disorder previous to it, or else of such a nature 1 C. V. Hawkins, 3 Gray, 463 (1854). « C. v. Webster, 5 Cush. 295 (1850) '^ C. V. Chapman, 11 Cush. 422 « Ibid. (1853). 7 C. V. Hilliard, 2 Gray, 294 (1854). ' C'y. Costley, 118 Mass. 1 (1875). » C. v. Eddy, 7 Gray, 583 (1856). * C. V. Hardy, 2 Mass. 317 (1807). 246 OF PARTICULAR OFFENCES. [Paet HI. as to indicate its existence as far back as the time of the com- mission of the offence.^ § 315. Suicide. An adviser of suicide, if the act be con- summated, is guilty of murder.2 An attempt to commit suicide is not indictable in Massa- chusetts under Gen. Sts. c. 168, § 8, which punishes attempts to commit any offence that would be punishable by death, or by fine, or confinement in jail, or in the state prison ; for the technical reason that the suicide, if committed, could not be punished in any of the modes stated in the statute. 1 C. V. Pomeroy, 117 Mass. 143 2 c. v. Bowen, 13 Mass. 356 (1816). (1875). CHAPTER XXVI. NUISANCE. (Gen. Sts. c. 26 ; c. 86, § 60 ; c. 87 — ^i!. 1863, c. 78 — St. 1865, e. 223 ; c. 269 ; c. 281 — St. 1866, e. 211 —,St. 1874, c. 290.) 316. The Offence. Keeping a tenement as a nuisance may consist in allowing such noise and disorder as to disturb the peace and annoy the neighborhood. But this is not essential. It is enough if it draw together dissolute persons engaged in unlawful practices, thereby endangering the public peace and the morals of the community. So if defendant have the en- tire or partial control of the premises and allows them to be the resort of drunkards, thieves, and prostitutes, who remain to late and unseasonable hours, he is properly convicted. And it is no defence that defendant endeavors to prevent affrays and breaches of the peace.^ There is no prescription for a nuisance ; so that it is no defence that it has been carried on for twenty years, and that when it coramenced there were no houses near.2 St. 1866, c. 285, and St. 1869, c. 152, do not justify the refining of petroleum at places where it causes of- fensive odors which are nuisances at common law.^ In 0. v. Smith, 6 Cush. 80 (1850), it was doubted whether it be an in- dictable offence to utter loud cries in the street to the disturb- ance of citizens. But in a later case such an indictment was sustained, where it was alleged that the cries were " to the common nuisance of all citizens of the Commonwealth there being." But it was held that the proof need not be as broad as this. It is suflBcient if the act be such as to tend to an- noy citizens and has actually annoyed any one.* It is indict 1 C. V. Cobb, 120 Mass. 356 (1876). ' C.». Kidder, 107 Mass. 188 (1871). " C. V. Upton, 6 Gray, 473 (1856). • C. v. Oaks, 113 Mass. 8 (1873). 248 OP PARTICULAR OFFEKCES. [Pakt III. able to fire a gun if the offender be warned and know that it will injure a sick person in the neighborhood ; and if it does so injure, it is a misdemeanor, and not a nuisance, to the common annoyance of the public, as it affects but one person.^ (For that reason would it be anything more than a private tort ?) § 317. Highway. A railroad company, building its road across a highway without lawful authority is indictable for a nuisance.^ A railroad so laid out as to obstruct a highway, without legislative authority, either express or by necessary implication, is a nuisance.^ And it is no ground for arrest of judgment that an act confirming and legalizing the road was passed after conviction ; for this did not make the road legal ab initio.* The obstruction of a highway by cars for more than five minutes is made a nuisance by St. 1871, c. 83, § 1, irrespective of intent. So it is no defence that the obstruc- tion was accidental and inevitable ; that reasonable diligence was used in removing it ; that the company used the great- est care in the selection of its employees, who were instructed not to permit such an obstruction, and that no officer of the corporation knew of it.^ § 318. The Indictment. If a statute forbidding the ob- struction of a navigable river impose a penalty on its creator or continuer, and enacts it a common nuisance, an indictment on the statute need not allege it to be a common nuisance.^ It seems that a count for a common law nuisance may be joined with a count under St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6);^ and an indictment for keeping a disorderly house at common law is not double for stating also a nuisance under that act.^ A charge of nuisance in keeping a tenement in a certain city and street named is sufficiently precise ; ® and it is 1 C. V. Wing, 9 Pick. 1 (1829). " C. v. Knowlton, 2 Mass. 530 2 C. V. R. E. Corp. 4 Gray, 22 (1807). (1855). 7 C. V. Kimball, 7 Gray, 328 (1856). 8 C. V. E. R. Co. 14 Gray, 93 (1859). ' C. b. Hart, 10 Gray, 465 (1858). i Ibid. » C. V. Skelley, 10 Gray, 464 (1858). s C. V. E. R. Co. 112 Mass. 412 (1873). Chap. XXVI.] NUISANCE. 249 not necessary to describe a room so as to distinguish it from every other room on the same floor.^ Where the allegation is, " kept a common nuisance, to wit," &c., it is not necessary to conclude " to the common nuisance." ^ § 319. The Evidence. Keeping a common nuisance is a local offence, and must be proved as laid.^ The prosecution may give evidence of defendant's former connection with the nuisance in the character of agent, as tending to show his in- fluence in respect to the doing of the acts charged.* (^Sed qucere.) On a trial for keeping a building from which issued noisome smells, no evidence is admissible of smells from the premises, but not issuing from the building.^ St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), makes a gambling-house a common nuisance ; so that no proof is required of its being so.^ 1 C. V. Hill, 14 Gray, 24 (1859). « C. v. Mann, 4 Gray, 213 (1855). 2 C. 0. Howe, 13 Gray, 26 (1859). » C. u. Brown, 13 Met. 365 (1847). » C. u. HefFron, 102 Mass. 148 (1869). ^ C. v. Buxton, 10 Gray, 9 (1857). CHAPTER XXVII. OBSTEXJCTION OP JUSTICE. {Gen. Sts. c. 163.) OFFENSIVE TEADBS. {Gen. Sts. c. 26, §§ 52 et seq.— St. 1865, c. 263 — ,». 1871, c. 167.) OEDINANCES OP CITIES AKD TOWNS. {St. 1878, c. 181.) § 320. Obstruction of Justice. It is indictable at com- mon law to dissuade and hinder a witness duly summoned from attending in court.^ If the facts show that the " due course" of justice has been obstructed, it need not appear that the trial was actually obstructed, or that the result was affected.^ § 321. The Indictment need not state where the witness was summoned, or when he was required to appear, nor on whose behalf he was summoned ; these being matters of in- ducement only ; nor that his testimony was material ; ^ and if it state that the " due course " of justice was obstructed, it need not conclude " to the obstruction and hindrance of pub- lic justice." * The offender being punishable at common law, but not by any statute, the words contra formam statuti may be rejected as surplusage.^ § 322. Offensive Trades. Gen. Sts. c. 26, §§ 52 et seq. has not superseded the common law as to offensive trades.^ 1 C. V. Reynolds, 14 Gray, 87 (1859). ' Ibid. ' Ibid. . 5 C. w. Ramford Chemical "Works, 16 Ibid. Gray, 23 {I860). < Ibid. Chap. XXTII.] ORDINANCES OF CITIES AND TOWNS. 251 § 323. Ordinances of Cities and Towns. By St. 1854, c. 448, § 35, city ordinances take effect from the time desig- nated tlierein ; and where no time is designated, they are in force immediately on their passage. This is the rule in the case of statutes, and there is no reason why it should not ap- ply to ordinances. Gen. Sts. c. 3, § 6, providing that statutes shall take effect thirty days after their approval, does not ap- ply to city ordinances.^ A Boston ordinance of June 2, 1871, forbidding carts to stand at Faneuil Hall Market longer than a specified time without permission of the superintendent, is not unreasonable. St. 1869, c. 301, § 1, does not apply to the case ; that regulating passing in the streets.^ An ordinance is valid forbidding persons to permit swine to go on or injure a sidewalk, under a charter authorizing such salutary and needful by-laws as towns, by the laws of the Commonwealth, have power to make ; and a defendant is punishable for the infringement though he made every effort to prevent it.^ An ordinance prohibiting the galloping or trotting of wagons through the streets is not in restraint of trade.* It is not es- sential that any one have been actually endangered by the in- fringement ; ^ and the permission of the mayor and aldermen to drive faster than was allowed by the ordinance is no de- fence.^ The Boston by-law of March 2, 1843, § 1, regulating the right to occupy market stands, is valid.^ Under the pro- vision forbidding certain persons to occupy any stand, &c., a stand may be " occupied " by a box containing articles for sale.^ The ordinance is infringed by a Bostonian, who, as agent for one living more than twenty miles distant, offers for sale articles not proved to the clerk of the market to be the produce of his principal's farm, or of a farm not more than three miles distant.^ It is no defence to a complaint for the violation of an ordinance prohibiting hackney coaches to take 1 C. «. Brooks, 109 Mass. 355 (1872). ' Ibid. 2 Ibid. 6 Ibid. 8 C. V. Curtis, 9 Allen, 266 (1864). ' C. v. Rice, 9 Met. 253 (1845). * C. V. Worcester, 3 Pick. 462 8 iby. (1826). » Ibid. 252 OF PARTICULAR OFFENCES. [Part III. more than the legal fare, that the fare was taken under a spe- cial contract, or that extra efforts and skill were required in order to catch a train. ^ Under the statutes, a city ordinance can impose no penalty over $20 for one offence. An ordinance punishing by a fine of not less than $1 nor more than $5 for every hour that a wagon should be kept at a market without permission of the clerk of the market, after notice to remove, was held void ; for the offence being a single, continuous one, the penalty might exceed $20 for a single offence on the same day.^ A Boston city ordinance foybade any person to " stand " on any street for the sale of any article, &c. A complaint charged defendant with standing on Haymarket Square, selling newspapers, in violation of the ordinance. It was held that the court erred in instructing the jury that defendant's moving back and forth, but confining himself to that locality, constituted the offence under the by-law, and that the evidence should have been left to the jury, with instructions.* A Boston city ordinance pro- hibiting hack-drivers to stand and solicit passengers elsewhere than at the places designated for them respectively by the board of aldermen, was held to be valid under Gen. Sts. c. 19, § 14, in which the power to regulate is conferred in the most general terms.* A person in charge ^f a hack was held liable under this ordinance, as fairly within its meaning, though standing to solicit passengers inside of a railroad station and out of sight of his carriage.^ Such an ordinance does not mean merely that one carriage shall not occupy a place de- signated for another.® § 324. The Indictment or Complaint. A complaint for occupying a market stand in Boston with a box need not aver that the box was large enough to hold articles for sale. This is properly matter of evidence for the jury.'^ A charge that 1 C.i). Gage, 114 Mass. 328 (1873). < C. v. Matthews, 122 Mass. 60 ■■' C. ... Wilkins, 121 Mass. 356 (1877). (1876). 6 Ibid. » 0. V. Elliott, 121 Mass. 367 (1876). " Ibid. ' C. t>. Rice, 9 Met. 253 (1845). Chap. XXVn.] ORDINANCES OF CITIES AND TOWNS. 253 defendant permitted swine " to go on and injure the side- walk " is not double.i In C. v. Gay, 5 Pick. 44 (1827), it was held that a complaint for the breach of a Boston by-law must conclude contra formam statuti ; and that " against the form of a by-law of said city " was not sufficient. But by Gen. Sts. c. 172, § 19, no such clause is necessary where its omission does not tend to the prejudice of the defendant. § 325. The Evidence. In a trial for the breach of a by- law prohibiting wagons to gallop or trot through the streets, evidence of defendant's character as a careful driver is inad- missible.^ On the trial of a hack-driver for the violation of a Boston city ordinance by stopping with his carriage on Prov- idence Street, it was held that the prosecution need not prove the street to have been formally dedicated to the public use ; that evidence was admissible of the street having been a common thoroughfare for twenty years, and that the city had repaired and lighted it ; and that from this evidence the jury might properly infer a dedication or appropriation of the street to the public use ; ^ and a book in the hands of the su- perintendent of carriages, prepared for his official use by the board of aldermen, was held to be admissible in evidence to show where hack carriages were respectively required to stand.* 1 C. V. Curtis, 9 Allen, 266 (1864). » C. v. Matthews, 122 Mass. 60 = C. c/. Woicester, 3 Pick. 462 (1826). (1877). * Ibid. CHAPTER XXVIII. PEEJTIEY AND SUBOENATION OF PERJURY. (Gen. Sts. c. 163, §§ 1 et seq. — St. 1860, c. 186.) § 326. The Offence. It is sufficient that the fact sworn to was circumstantially material ; that is, that it contributed to establish a fact in issue.^ Evidence as to an alibi is mate- rial, and therefore perjury may be committed in respect to it.^ Perjury may be committed before a commissioner in Massa- chusetts appointed to take depositions by a court of another State, under Gen. Sts. c. 131, § 38.^ The form of the oath in § 8 is only directory.* Perjury may be committed by falsely swearing to facts legitimately tending to establish the prin- cipal fact in issue, although, as to this principal fact itself, defendant swore truly ; for it is a false statement intended to corrupt the administration of justice. As, where on the trial of a woman for larceny from J. S., her defence being that she was the wife of J. S., she swore truly that she was not his wife, but falsely as to certain circumstances pertinent to that issue.^ Where a trustee swore to his discharge by payments to the party sued of interest on a usurious contract, but his answer not disclosing that the contract was usurious, it was held that he was not guilty of perjury. The contract was not void, but voidable only by the debtor trustee, and not by the plaintiff in the suit, he being a stranger to it ; so that, as against him, the trustee was discharged. But this was no de- 1 C. u. Pollard, 12 Met. 225 (1847). * Ibid. 2 C. V. Flynn, 3 Cush. 525 (1849). » C. v. Grant, 116 Mass. 17 (1874). ' C. K. Smith, 11 Allen, 243 (1865). Chap. XXVIII.] PBBJURY AND SUBORNATION. 255 fence for his swearing that there was no contract at all ; and the conviction on this ground was held good.^ § 327. As bail. Defendant having, as bail, sworn falsely as to certain property, it was held to be no defence that he had other property sufficient to cover the amount of bail re- quired, or that he had not been accepted. The perjury was complete when the oath was taken. ^ If a surety to a recog- nizance swear falsely as to the value of his property, it is perjury if wilfully and corruptly done ; but not if he swore in good faith or ignorantly, though stating the property at much more .than its real value.^ § 328. Subornation of Perjury. It is not enough that the defendant knew that the testimony of the suborned wit- ness would be false. It must also appear that the witness himself knew it to be false ; for otherwise there was no per- jury committed, and there could consequently be no convic- tion for subornation of perjury.* To be guilty of this offence a defendant must have procuted the commission of perjury by inciting, instigating, or persuading the witness to commit it.^ Under the statute, one who, in another State, procures the commission of perjury in Massachusetts, is indictable in this State for the subornation.^ § 329. Tlie Indictment need not allege that the witness had been summoned to appear in court, or that the false swearing was in answer to specific questions, or that the case was within the jurisdiction of the court; but it must be alleged, or at least appear from the indictment, that the fact sworn to was material.'^ Where the averment was that it be- came a material question whether certain goods had been sold in part payment of a certain debt, or in part payment of a certain other debt, and that defendant falsely swore that the same were sold in part payment of the first named debt, it was held sufficient, though no mention was made of the other debt.^ 1 C. V. Parker, 2 Cush, 212 (1848). * C. v. Douglass, 5 Met. 241 (1842). ■■■ C. V. Carel, 105 Mass. 582 (1870) ; ^ ibid. C. V. Hatfield, 107 Mass. 227 (1871). « C. v. Smith, 11 AUen, 243 (1865). » C. V. Butland, 119 Mass. 317 f C. w. Knight, 12 Mass. 274 (1815). (1875). 8 C. B. Johns, 6 Gray, 274 (1856). 256 OP PARTICULAR OFFENCES. [Paet III. All the particulars as to which defendant is alleged to have sworn falsely may be embraced in a single count.^ Averments that J. S. was "lawfully before the court" on a charge of per- jury, and that " it was lawfully ordered that he recognize with sureties," sufficiently show, under St. 1860, c. 186, § 1, that the court had jurisdiction.^ In 0. v. Warden, 11 Met. 406 (1846), where the charge was perjury by a defendant in chancery, certain allegations, taken together, were held to amount to a charge that defendant had taken a false oath when lawfully required to depose in a proceeding in a court of justice, and to be sufficient to support a conviction. One good assignment of perjury will support the verdict, though the rest be defective.^ If the indictment do not show, either by averment or by necessary intendment, that the testimony in question was material to the issue, the defect is fatal.* (This essential element in common law perjury is evidently regarded as entering into the offence in Massachusetts, al- though the statutory definition of perjury, Rev. Sts. c. 138, § 2 (Gen. Sts. c. 163 § 2),. makes no mention of it.) Where it was averred that " it became a« question," and then sev- eral questions were stated, with no connecting words between them, it was held that the word " question " might be ap- plied distributively ; but that, though the indictment was cer- tain to a legal intent, such a form of averment could not be recommended.^ An assignment that defendant swore as of his own knowledge and occurring in his sight and presence, that J. S. did write the words in question ; whereas, in truth and in fact, J. S. never wrote them, is sufficiently direct and positive, and not argumentative or inferential.^ § 330. Offences as baU. Under St. 1860, c. 186, § 1, the indictment need not aver the authority to administer oaths of the person before whom defendant was sworn.'^ Perjury 1 C. V. Johns, 6 Gray, 274 (1856). * 0. v. Byron, 14 Gray, 31 (1859). 2 0. V. Butland, 119 Mass. 317 ^ C. t<. Johns, 6 Gray, 274 (1856). (1875). » C. V. McLaughlin, 122 Ma.ss. 449 » C.U.Johns, 6 Gray, 274 (1856); (1877). C. V. McLaughlin, 122 Mass. 449 ' C. u. Hughes, 5 Allen, 499 (1862). (1877). Chap, XXVIII.] PERJURY AND SUBORNATION. 257 before a bail commissioner. The charge was that defendant, " being then and there duly sworn, he did then and there falsely depose and swear in and by said written statement." It was held sufficient, as it could only mean that defendant made such written statement under oath.^ Since St. 1860, c. 186, § 1, an indictment of bail for perjury before a bail com- missioner need not set out the previous proceedings consti- tuting the commissioner's authority to act.* In C. v. Hatfield, 107 Mass. 227 (1871), certain allegations were held sufficient to aver that defendant knowingly and falsely made statements under oath which were material to the issue. § 331. The Evidence. One vsdtness is sufficient to prove that defendant swore as alleged.* To convict of perjury two witnesses are not necessary. One witness is sufficient, with strong corroborating circumstances ; such as documentary proof, or a letter written by defendant.* An indictment for perjury is supported by proof that defendant swore to the matters set forth, and that such statement was material, though the body of the statement was written by the bail commissioner ; defendant swearing to its truth before, and not after affixing his signature. The gist of the offence is swearing to false statements knowingly, whether they be oral or written.^ Defendant had sworn, when examined as bail, that a certain house belonged to him. The prosecution had proved that the house had been devised to defendant's vdfe. It was held that the case for the prosecution might rest upon the legal presumption that there had been no change of owner- ship ; but that it was competent to corroborate this presump- tion by proof that a search of the records down to the time of trial showed no conveyance to have been made by the wife.^ Evidence that the matter sworn to had been permitted to 1 C. V. Care], 105 Mass. 582 (1870). * C. v. Parker, 2 Gush. 212 (1848) ; '^ C. u. Hatfield, 107 Mass. 227 C. t. Butland, 119 Mass. 317 (1875). (1871). 6 c. „. Hatfield, 107 Mass. 227 « C. V. Pollard, 12 Met. 225 (1847). (1871). 6 Ibid. 17 258 OP PARTICULAE OFFENCES. [Paet III. go to the jury affords no legal presumption that it was mate- rial to the issue.i § 332. The oath. The magistrate who administered the oath being dead, his certificate of the oath may be proved by evidence of his handwriting.^ Where the charge was that defendant had sworn falsely in an application for a superse- deas of an execution on auditd querela, the following evidence was held to be sufficient of the oath having been taken : (1.) A rule of the court requiring all motions upon facts to be veri- fi.ed by affidavit ; (2.) Though, in such cases, there was no order, general or special, for an oath, it was the general prac- tice to administer it ; (3.) The legal presumption of omnia riti acta, which could not be controlled by the mere non-rec- ollection of the witness. (^Semble, this evidence falls very far short of what the law requires in criminal cases for con- viction.) § 333. Evidence admissible. Where the prosecution had given evidence that a reward had been offered for the detec- tion of an incendiary who had set fire to a ship, as a probable motive for defendant's alleged perjury, defendant was allowed to rebut by proof that he had come reluctantly from his resi- dence in another State to testify, at the earnest request of the insurers.^ Where the defence offered to prove that defend- ant had sued the prosecuting witness, and that the witness had offered to abandon the prosecution for perjury if defend- ant would discontinue the suit, the evidence was held admissi- ble to show bias.* Where the proceeding in which the false oath was alleged to have been taken was a motion for a su- persedeas of an execution on auditd querela, the issue being simply whether defendant had paid the debt after judgment, his answer in the suit was held to be immaterial and irrele- vant." § 334. Variance. The charge was that defendant falsely swore that no assault was made on him " Sept. 10th." An 1 C. V. Pollard, 12 Met. 225 (1847). * C. r. Byron, 14 Gray, 31 (1859). a C.u. Warden, 11 Met. 406 (1846). ^ C. v. Kimball, 108 Mass. 473 « C. b. Brady, 7 Gray, 320 (1856). (1871). Chap. XXVIII.] PERJURY ANB SUBORNATION. 259 assault on him was proved on " Sept. 9tli or 10th." The variance was held fatal. Though in the case in which the perjury was alleged to have been committed the day would have been immaterial, on the trial for the perjury it was material, being made part of the description of the offence. '^ So, where the charge was that defendant swore he had land in East Cambridge, Massachusetts, and the proof was that he swore he had land in East Cambridge, without more, it was held insufficient.* But where it was charged that defend- ant, in answer to interrogatories in an examination before the Probate Court for the embezzlement of a deed to " Mary Holt," falsely denied that he had ever seen it, and the deed proved on the trial was to " Polly Holt," it was deemed no variance, it being proved that defendant knew that " Polly Holt" was the person meant in the interrogatories.^ An averment that a motion for a new trial was heard by the judge " at his chambers " is sustained by proof that the hear- ing was in a room set apart for business not requiring the presence of a jury.* § 335. Subornation of perjury is provable by a single wit- ness.5 Defendant being on trial for suborning A. to commit perjury, the prosecution offered to prove that on the trial in which the perjury was charged to have been committed, A. swore that she had come to Boston on account of a letter she had received from defendant. This evidence was held to be admissible, not as proof that defendant sent the letter, but simply of the fact of her having so testified, by which defend- ant was notified to account for her coming ; and his failure to do so being a circumstance for the jury.^ 1 C. u. Monahan, 9 Gray, 119 (1857). ' C. v. McLaughlin, 122 Mass 449 2 C. V. Hughes, 5 Allen, 499 (1862). (1877). » C. V. Terry, 114 Mass. 263 (1873). 6 c. v. Douglass, 5 Met. 241 (1842) « Ibid. • CHAPTER XXIX. POISONIKG. {Gen.Sts.c. 160, § 32.) POUND BBEACH. {Gen. Sts. c. 25, §§ 18 et seq.) § 336. Poisoning. An indictment for mingling poison with food or drink with intent to kill need not aver that the mixture was poisonous, or that defendant knew it to be so ; the offence described in the statute being merely " mingling " poison with food or driak with intent to kill or injure.^ (But an intent " to kill or injure " certainly implies defendant's knowledge of the mixture being poisonous.} § 337. Pound Breach. That the distress was Ulegal is no defence to an indictment for a pound breach .^ 1 C. V. Galavan, 9 Allen, 271 (1864). = C. v. Beale, 5 Pick. 514 (1827). CHAPTER XXX. EAPE AND INDECENT ASSAULT. (Gen. Sts. c. 160, §§ 26, 27 ; c. 170, § 51— St. 1871, cc. 55, 61.) § 338. Rape. A defendant may be properly convicted of rape for carnal intercourse with a woman without her con- sent and while he knew her to be insensible.^ § 339. The Indictment need not allege that defendant was over fourteen, or that the female was not his wife.^ Under St. 1852, c. 259, § 2 (Gen. Sts. c. 160, § 26), the age of the female need not be stated ; the punishment being the same whether she be over ten years old, with force, or under that age, without force.^ It is not necessary to aver that she was not defendant's wife. This can be shown in defence.* But where this is not averred, a verdict of fornication cannot be sustained. Such an averment is not essential in rape, since a husband can be a principal in the second degree in a rape on his wife.5 Since Rev. Sts. c. 137, § 14 (Gen. Sts. c. 172, § 19), and St. 1852, c. 37, § 3, the offence need not be charged to have been committed " with force and arms " or " felo- niously." ^ " Violently and against her will ravished and carnally knew," implies " by force." ^ " Carnal knowledge " means sexual connection.^ " Without her consent " and " against her will " are synonymous.^ In the averment " did make an assault, and her, the said A. B., did beat, wound, and ill treat, with intent her, the said A. B., to ravish," the words 1 C. V. Burke, 105 Mass. 376 (1870). ' C. v. Murphy, 2 Allen, 163 (1861). ' C. V. Scannell, 11 Cash. 547 « C.u. Scannell, 11 Cush, 547 (1853). (1853). ' C. V. Fogerty, 8 Gray, 489 (1857). 8 C. V. Sugland, 4 Gray, 7 (1855). » C. v. Squires, 97 Mass. 59 (1867). * C. V. Fogerty, 8 Gray, 489 (1857). » C. v. Burke, 105 Mass. 376 (1870). 262 OP PARTICULAR OFFENCES. [Part HI. " and her, the said A. B., did beat, wound, and ill treat " are surplusage, and the remainder is sufficient to support con- viction.i § 340. The Evidence. In G. v. Merrill, 14 Gray, 415 (1860), in a trial for an assault with intent to ravish, cer- tain evidence was held to be insufficient to prove the intent charged, though sufficient to sustain a conviction for a simple assault. The defence cannot show by a cross-examination of the woman, or otherwise, that she declared herself pregnant by other men ; no evidence being competent of particular acts.^ § 341. Indecent Assault. On a trial for an indecent as- sault, the prosecutrix testified that on a certain day in August, 1872, defendant took her to drive and visited a house of his, where he took indecent liberties with her. On cross-examina- tion she was asked if she did not in September, 1872, in pres- ence of a Mrs. B., ask defendant to take her to drive, saying that she would kiss him if he would. She answered that " she did n't think she did, but would not swear it." Held, that defendant was then entitled to prove by Mrs. B. that she did.^ On the question as to the woman's consent, evi- dence is admissible, as in rape, of her bad reputation for chastity.* 1 C. I/. Hunt, 4 Pick. 252 (1826). * C. v. Kendall, 113 Mass. 210 2 C. V. Regan, 105 Mass. 593 (1870). (1873). 8 C. V. Bean, 111 Mass. 438 (1873). CHAPTER XXXI. EBSISTANCB TO OFMCBE. (Gen. Sts. c. 163, §§ 11, 12 ; c. 164, § 10 ; c. 179, §§ 53, 54.) § 342. The Offence. A defendant was held to be guilty of an assault in resisting an officer having a prisoner in cus- tody on a warrant for examination on a charge of larceny in another State, and of being a fugitive from justice, under Rev. Sts. c. 142, §§ 7, 11 (Gen. Sts. c. 177, §§ 3, 11). And it was held to be no defence that the owner of the prisoner, who was a slave, had declared that the prisoner was not guilty of theft, and that the charge had been made only to secure his person and carry him away, and that the officer knew this ; the war- rant itself being valid.^ It was further held that the consta- ble did not abuse the process or forfeit the protection of his warrant by having, at the same time, a power of attorney from the slave's master to take anS hold him.^ It is no defence to an assault on a police officer in Boston, appointed under St. 1838, c. 123, that he had not been sworn into office.^ Any resistance to an officer after arrest is an offence, and one interfering to prevent a fight, not knowing the party to be an officer, but using more force than is necessary, is guilty of an assault.* In 0. V. Malloy, 119 Mass. 347 (1876), it was held that Gen. Sts. c. 163, § 11, does not merely punish a common law rescue, but defines the offence to be punished, and that it is not material that defendant did not know the person assaulted to be an officer. It was said that " forcibly rescuing a pris- » C. V. Tracy, 5 Met. 536 (1843). s C. „. Dugan, 12 Met. 233 (1847). 2 Ibid. 4 C. V. Cooley, 6 Gray, 350 (1856). 264 OF PARTICULAK OFFENCES. [Part III. oner in custody " is all that is necessary to constitute the of- fence ; that the use of force itself was an unlawful act, and that the intent to use it is therefore a criminal intent ; and that defendant need not know all the consequences of his act. And in 0. v. Fillurn, 119 Mass. 297 (1876), it was held that though the statute (Gen. Sts. c. 163, § 12) punishing the aid- ing of a prisoner to escape from an officer's custody does not apply to one innocently aiding, a defendant is nevertheless liable if he used force ; for this is unlawful per se. (Both these decisions disregard an obvious principle ; that the crimi- nal intent essential to the offence, and which must be proved, is. the particular criminal intent charged in the indictment. An intent to resist an officer is not proved by evidence of an intent to merely commit a simple assault. Again : if A. see B. struggling with a person unknown who seeks to overpower him, he may lawfully interpose, and with force, to prevent a breach of the peace. Shall the fact, of which A. was ignorant, that the person was an officer, convert this use of force into a crime ?) If there be resistance in the beginning, the officer is not bound to show his warrant before completing the arrest.^ By inciting others to a^ault a police officer while in the discharge of his duty, one is guilty of assault.^ In misdemean- ors all aiding and abetting are principals. § 343. Resistance when justified. If the officer, on being requested, refuses to tell why he makes the arrest, he may be lawfully resisted.^ So, if the warrant is void on its face.* To make a defendant liable under Gen. Sts. c. 164, § 10, for be- ing armed when arrested by a police officer, it must be shown that the arrest was lawful, and that the officer was one quali- fied to serve criminal process." But an unlawful omission of an officer to subsequently make a complaint against one whom he has lawfully arrested is no defence for an assault ; ^ and if 1 C. V. Cooley, 6 Gray, 350 (1856). ^ C. v. Doherty, 103 Mass. 443 2 C. V. Hurley, 99 Mass. 433 (1868). (1869). ' C. V. Cooley, 6 Gray, 350 (1856). « C. v. Tobin, 108 Mass. 426 (1871). * C. V. lutox. Liq. 105 Mass. 178 (1870). Chap. XXXI.] EESISTANOE TO OFFICER. 265 a field-driver demand illegal fees for the return of defendant's cow, this does not make him a trespasser ah initio, so as to justify defendant's assault on him to recover the cow.^ In a V. Kennard, 8 Pick. 133 (1829), it was held that if an officer seize the goods of A. on a writ against B., A. may lawfully resist liim. (No doubt, A. might prevent the seizure by any peaceable means ; but further than this, semhle, the law does not go. The ownership of property turns sometimes upon nice questions of law, and often upon facts of which the officer can have no knowledge ; should he be held bound to arrive at a correct decision at the risk of being personally as- saulted ? If he attempt to seize goods under a void process, he could no doubt be forcibly resisted ; for then he is not acting officially, and both from reason and public policy he is pre- sumed to know whether the process he is acting under is reg- ular and was issued by a court having jurisdiction.) It was held a good defence to an assault on a police officer while exe- cuting a search-warrant, that the warrant authorized the entry only upon premises occupied by a person other than the de- fendant ; and that the officer's belief that the closet entered by him was in reality occupied by the defendant in the search- warrant did not affect defendant's rights.^ § 344. Powers of oflloers. A police officer, in arresting a man apparently intoxicated, commits no assault.^ Trial for assault on an officer while in discharge of his duty. It appeared that defendant had been arrested by a police officer, without a warrant, for drunkenness, on which charge he was afterwards tried and acquitted. The assault charged was committed by him at the time of his arrest, when about to be locked up. The defence asked the court to instruct the jury that, inasmuch as the officer had made the arrest with- out a warrant, on a charge of which defendant was afterwards acquitted, the arrest was illegal, the officer could not be deemed to have been in the discharge of his duty, and was a mere trespasser. But the evidence showing defendant to I C. 1,. McCue, 16 Gray, 226 (1860). 8 C. •^. Presby, 14 Gray, 65 (1859). ^ C. V. Newton, 123 Mass. 420 (1877). 266 OP PARTICULAR OPPENCES. [Part III. have been really drunk when arrested was not contradicted by him while on the stand, and the instruction was refused. The jury were told that an officer could arrest for drunken- ness without a warrant, and that defendant's acquittal of the charge was not conclusive of his not being drunk on the pres- ent trial. Verdict of guilty, and exceptions. The judgment was affirmed on the ground that by Gen. Sts. c. 165, § 25, the crime of drunkenness is defined as " drunkenness by the voluntary use of intoxicating liquor ; " that on a trial for the statutory offence, if a defendant show that his intoxication was not caused by the " voluntary " use of liquor, he would be entitled to an acquittal ; that defendant's acquittal of the statutory offence was therefore not conclusive as to his not being drunk when arrested ; and on the other hand, by St. 1876, c. 17, an officer may arrest one found drunk in a public place without any limitation as to the means by which the in- toxication may have been produced. The officer was there- fore in the discharge of his duty, and the conviction was right.^ A Boston police officer, appointed under St. 1838, c. 123, who has arrested a drunken person and released him on his promise to go home, may lawfully retake him on his going to a bar-room while still in the officer's sight.^ The power of a Boston special police officer for the National Theatre was not limited, it was held, to the interior of the theatre, but ex- tended to its purlieus and environs, so far as was necessary for the preservation of order among the comers and goers and in the supplying of refreshments.^ A justice of the peace orders a constable, without a warrant, to retake a prisoner for an as- sault in the justice's presence. The constable may lawfully do so ; and, after demand and refusal, may break open doors, and if the prisoner then assault him, it is an assault upon him while in the discharge of his duty.* A constable, in the dis- charge of his duty, may enter through an unfastened door of a 1 C. V. Coughlin, 123 Mass. 436 » Ibid. (1877). * C. u. McGahey, 11 Gray, 194 2 C. V. Hastings, 9 Met. 259 (1845). (1858). Chap. XXXI.] KESISTANCB TO OFFICER. 267 house where there is a noise amounting to a disturbance of the peace, and arrest any one engaged in it ; and any affray or assault is a breach of the peace.^ An officer with a warrant of arrest for a misdemeanor, having reasonable cause to be- lieve the defendant to be in a certain house, after notifying the occupant that he has such a warrant, on entrance* being refused, may break open an outer door, although the defend- ant was not there, and although the occupant was not in- formed who the defendant was, he not having inquired.^ The sexton of a church, charged with the care of it and with the direction of funerals in it, may remove an undertaker who, after being warned, persists in conducting a funeral, in viola- tion of the rules of the proper authorities of the church.^ But the powers of an officer of an agricultural society ex- tend no further than as defined in Gen. Sts. c. 66, §§ 11, 14 ; so that when such an officer was indicted for an assault, it was held to be no defence that the party assaulted had struck his horse while resisting being put beyond the limits of the race-ground.* § 345. The Indictment. In an indictment for an assault on a constable, the words "unlawfully, knowingly, and de- signedly hindered " are a sufficient allegation of defendant's knowing him to be an officer.^ An indictment for a forcible attempt to rescue a prisoner lawfully arrested by a police offi- cer for breaking and entering with intent to steal, need not state the process under which the arrest was made. In a case of felony an officer may arrest without a warrant.^ § 346. The Evidence. Defendant was tried for an as- sault on A. A. swore that he had taken the cows, to recover which the assault on him had been made, as field-driver, and that he had been acting as such for some years. This evi- dence was held to be sufficient to warrant the jury in finding him to have been a field-driver de facto.'' So, on atrial for an 1 C. a. Tobin, 108 Mass. 426 (1871). * C. v. Buggies, 6 Allen, 588 (1863). 2 C. V. Reynolds, 120 Mass. 196 ' C. v. Kirby, 2 Cush. 577 (1843). (1876). 6 c. „, Lee, 107 Mass. 207 (1871). ' C. V. Dougherty, 107 Mass. 243 ' C. v. McCue, 16 Gray, 226 (1860). (1871). 268 OP PAKTICULAK OFFENCES. [Part m. assault on a police officer while in the discharge of his duty, evidence that he had been acting as such for four years was held sufficient proof of his official character.^ So, in a similar case, it was held sufficient evidence of the person assaulted being an officer that he was acting as such, and wearing, to defendant's knowledge, the badge and uniform of one.^ On a trial for an assault on A. B., deputy sheriff, it was proved that A. B.'s commission as deputy sheriff was to "A. B., Jun." But it was held no variance. It was enough to prove the iden- tity of the person, and after verdict this would be presumed proved.^ To an indictment for an assault on a police officer of the town of Newton, and for resisting him while in the dis- charge of his duty, the defence was that the officer was not legally a police officer of Newton. The evidence on this point was that the officer worked and boarded in the town of F. and was a police officer of F. ; that while on duty in Newton he sometimes slept in the police station there ; that he had a room in Newton where he sometimes slept, and also a room there in his brother's house, where he kept his clothes ; and that he claimed to be an inhabitant of Newton. It was held that this evidence was sufficient to warrant the jury in finding him to be an inhabitant of Newton.* An undertaker who persisted in conducting funeral services in a church without authority, after being notified that he was violating the rules of the church, was removed by the sexton, who, in removing him, gave him a blow. Held, that it was for the jury to de- cide whether the force used was for the purpose of removing the undertaker, and whether it was reasonable in kind and in degree.^ 1 C. V. Kane, 108 Mass. 423 (1871). * C. v. Kelleher, 115 Mass. 103 2 C. V. Tobin, 108 Mass. 426 (1871). (1874). 8 C. u. Beckley, 3 Met. 330 (1841). ^ C. v. Dougherty, 107 Mass. 243 (1871). CHAPTER XXXII. EIOT. {Gen. Sts. c. 13, §§ 134-136; c. 18, § 29; c. 30, § 16; c. 164; c. 165, § 23.) EOBBBRY. {Gen. -as. c. 160, §§ 22-25.) SODOMY. {Gen. Sts.c. 165, § 18.) § 347. Riot. If numbers assemble tumultuously to dis- turb one's enjoyment of a lawful right, it is riot.^ Disorderly behavior in a town meeting is indictable at common law ; and an indictment on the statute is maintainable if the facts amount to an offence at common law.^ St. 1849, c. 59 (Gen. Sts. c. 165, § 23), applies to disturbances of all meetings law- fully held, whether political or for amusement.^ § 348. The Indictment. In 0. t. Runnels, 10 Mass. 518 (1813), it was held sufficient to charge -that defendants " as- sembled, with force and arms," without repeating the words " with force and arms " in every averment as to what they did. But under Gen. Sts. c. 172, § 19, these words are no longer necessary in any indictment. § 349. The Evidence. A charge of riot is supported by proof of one in which defendant and any two other persons joined.* Where several rioters were jointly tried, evidence was admitted which was legally competent against one of them only. It was held that after his acquittal the others 1 C. V. Runnels, 10 Mass. 518 (1813). ' C. v. Porter, 1 Gray, 476 (1854). 2 C. u. Hoxey, 16 Mass. 385 (1820). * C. v. Berry, 5 Gray, 93 (1855). 270 OF PARTICULAR OFFENCES. [Pakt III. had no ground of exception, the evidence not being shown to have affected thein.^ § 360. Robbery. Larceny either by actual force, or by constructive force by means of an assault and putting in fear, is robbery.^ To make a robbery capital under St. 1818, it was enough if the robber was armed with a dangerous weapon and intended to kill or maim in case of need, and that he had power to execute the threat.^ Under Rev. Sts. c. 125, § 13 (Gen. Sts. c. 160, § 22), a "wound" is not proved by a scratch on the face, nor " striking " by the assailant's putting his arms round the neck of the person assaulted and throwing and jamming him upon the ground.* § 351. The Indictment need not allege both actual force and a putting in fear. Larceny by either of these means is robbery.5 Under Rev. Sts. c. 125 § 15 (Gen. Sts. c. 160, § 24), it must be averred, as at common law, that the things stolen belonged to the person robbed or to some third person, and that the robber carried them away.^ Under Gen. Sts. c. 160, § 22, it need not be averred that the striking or wound- ing was with a dangerous weapon.'^ § 352. The Evidence. It being in evidence that the per- son robbed described the robber to an officer, evidence that, in consequence of what he was told, the officer went after the defendants, was held inadmissible. It would be tantamount to making the officer's inference from what he was told evi- dence.^ On a trial for the robbery of a watch and chain, evidence was held competent, to corroborate the owner's testi- mony, that a ring had been found resembling the one on his watch, and appearing as if wrenched off, at the place where the owner had sworn he was robbed.® An indictment char'ged the robbery of " divers promissory notes current as money in V. Humphries, 7 Mass. 242 C. V. ClifFord, 8 Cush. 215 (1851). ' C. V. Mowry, 11 Allen, 20 (1865). 8 C. V. Martin, 17 Mass. 359 (1821). » c. ^. Fagan, 108 Mass. 471 (1871). * C.u. Gallagher, 6 Met. 565 (1843). »C. v. Watson, 109 Mass. 354 (1872). 1 C. V. Bosworth, 6 Gray, 479 5 C. (1856). (1810). 2 C. V. Humphries, 7 Mass. 242 6 C. (1810). ' C. Chap. XXXIl.] SODOMY. 271 said Commonwealth, of the amount and of the value of eighty- seven dollars, a more particular description of which is to the jurors unknown." The prosecuting witness swore that the money taken consisted of three tens, eleven fives, and one two, and that "he so testified before the grand jury." This was held no variance. The statement of the amount and value was not a descriptive allegation. A more particular description of the money was not required, and the allegation that a more particular one was unknown to the grand jury was therefore immaterial.^ § 353. Sodomy. The principal witness swore to defend- ant's declaration a week after the alleged act that " he had done it with other boys." This evidence was held admissi- ble, its indefiniteness affecting only its weight. As to whether defendant alluded to this particular crime in his confession it was for the jury to judge.^ The patient swore positively to the commission of the offence, with various circumstances, certain of which were corroborated by other witnesses. It was held that the evidence was sufficient for conviction, even if the principal witness should be deemed an accomplice.^ 1 G. V. Green, 122 Mass. 333 (1877). ^ C. v. Snow, 111 Mass. 411 (1873). C. M. Hussey, 111 Mass. 432 (1873). s ibid. CHAPTER XXXIII. TTNLAWPUL GAMES AND ILLEGAL GAMING. {Gen. Sts. c. 85 ; c. 87, §§ 6 et seq. ; e. 165, §§ 22, 28-34; c. 170, • % 2— St. 1861, c. \27 — St. 1863, c. 19, — St. 1865, cc. 223, 269, 281, 289 — St. 1866, c. 280 — St. 1869, cc. 364, 382.) TJSUEY. § 354. Unlawful Games. Under Rev. Sts. c. 50, § 17, bowls and ninepins were unlawful games,^ whether betting or gaming accompanied them or not.^ Under this section one keeping a bowling-alley was liable, whether keeping it for himself, or as agent or hired man for another ; ^ and suffering persons, for gain, to resort there to play was not one continu- ing offence ; so that the offender was liable to the penalty for each separate act.* Under Gen. Sts. c. 88, § 71, punish- ing the keeper of a billiard-room for suffering a minor to be admitted, guilty knowledge or intent is not essential ; and it is no defence that the minor had been refused admission by defendant, and that afterwards, in defendant's absence, the minor came in and only looked on.^ • A defendant indicted under St. 1865, c. 277, for refusing to allow a negro to play in a billiard-room, is not punishable unless the billiard-room was licensed ; the statute, as is plain from St. 1866, c. 252, being intended to apply only to " licensed " places of amuse- ment.^ Playing with dice to determine who shall pay for a drink is illegal gaming.'^ 1 C. V- Goding, 3 Met. 130 (1841). ' C. v. Emmons, 98 Mass. 6 (1867). 2 C. «. Stowell, 9 Met. 572 (1845). " C. v. Sylvester, 13 Allen, 247 « C. V. Drew, 3 Cush. 279 (1849). (1866). • C. V. Stowell, 9 Met. 572 (1845). ' C. v. Howe, 13 Gray, 26 (1859). Chap. XXXm.] UNLAWFUL GAMES, ETC. 273 § 355. The Indictment. Under St. 1798, c. 20, it was not enough to allege that defendant was duly licensed as an inn- holder. It was necessary to aver also that his suffering the playing at unlawful games was " in his employment " as innkeeper. Though having a license, he may not have used it, or he may have forfeited it by removing to another place ; ^ but a charge of playing cards, &c., " in his dwelling-house, where he was then and there licensed as an innholder," was held sufficient to show that defendant committed the offence " in his employment " as innholder.^ Under Rev. Sts. c. 50, § 17, punishing the suffering of persons to resort to a house for the purpose of playing unlawful games, it was not held jiecessary to allege that any persons did resort or play there. The statutory offence was complete, if any persons were per- mitted to resort there for the purpose of playing.^ Under St. 1798, c. 20, an indictment charging an innholder with suf- fering persons " to play at cards and other unlawful games " was held to be sufficiently certain : " other unlawful games '' being surplusage.* An indictment under St. 1855, c. 405 (Gen. Sts. c. 87, § 6), need not specify the kind of illegal gaming, nor allege, beside the gaming and keeping of liquors, that the tenement was a house of ill-fame.^ An averment that a tenement was " used for illegal gaming " charges no offence. At common law the offence is keeping " a common gaming-house." Defendant may have used the house himself for illegal gaming ; but this would not constitute the offence under Gen. Sts. c. 87, § 6, which requires the tenement to be "resorted to " for illegal gaming ; and under c. 85, § 7, the offence is keeping a common gaming-house, with tables or other apparatus for gaming.^ § 356. The Evidence. Under St. 1855, c. 405 (Gen. Sts. c. 87), acts of gaming that were not before the grand jury are admissible in evidence if the offence proved by them be 1 C. V. Bolkom, 3 Pick. 281 (182.5). * C. v. Eolkom, 3 Pick. 281 (1825). 2 C. V. Arnold, 4 Pick. 251 (1826). 6 C. v. Edds, 14 Gray, 406 (1860). " C. V. Stowell, 9 Met. 572 (1845). 6 c. u. Stahl, 7 Allen, 304 (1863). 18 274 OF PARTICULAK OFFENCES. [Pakt III. the same as that charged in the indictment.^ Evidence is ad- missible of the hanging of "bells by other persons than defend- ant, connecting the bar-room with a room in the third story, for the purpose of showing that the whole building was used as one tenement ; and the fact may be argued upon to the jury as proof that the bells were hung to give the alarm to gamblers.^ It is sufficient if defendant occupied the whole building, though he used but part of it for gaming.^ § 357. Usury. St. 1788, making usury a criminal offence, was repealed by St. 1,826, c. 143. The offence was held to be complete if more than legal interest was paid at the time of the loan, whether the principal was ever repaid or not.* That defendant was acting only as agent for the lender wa^ held to be no defence ; especially if he did not disclose the fact at the time.^ On a trial for usury the borrower was a competent wit- ness.® 1 C. V. Edds, U Gray, 406 (1860). * C. v. Frost, 5 Mass. 53 (1809). ">■ Ibid. 5 Ibid. 3 C. V. Shattuck, U Gray, 23 (1859). ^ Jbid. PART FOURTH. OF CRIMINAL PEOCEDURE. CHAPTER I. AMENDMENT. AEKEST. ( Gen. Sts. c. 120, §§ 32 et seq. ; c. 158 ; c. 163, §§ 15 et seq. ; c. 164 ; c. 165, §33; c. 169, § 14 ; c. 170, — .S^<. 1865, c. 31 — ,». 1866, c. 235 — St. 1876, cc. 17, 181.) § 358. Amendment. Even in criminal cases an amend- ment is allowed to supply a mere clerical omission in the record.^ At any time before trial the Superior Court may allow the trial justice to transmit amended copies of the record and papers.^ After the trial has begun, a clerical error in the copy of the record in evidence may be amended at any time before the case is given to the jury ; ^ and defendant may be arraigned and tried on the amended papers.* So, unless defendant asks for a postponement, the court may suspend the trial, on the application of the prosecuting attorney, to obtain a correction of the certified copy of the complaint as to the date of the offence.^ After a verdict of guilty in a capital case, the constable who served the venire for one of the grand jurors, and who was still in office, was allowed to amend his return of the venire 1 C. V. Taylor, 113 Mass. 1 (1873). 8 c. v. Phillips, 11 Pick. 28 (1831). 2 0. V. Wiggin, HI Mass. 428 * C. u. Magoun, 14 Gray, 398 (I860). (1873). » C. V. Kelly, 12 Gray, 123 (1858). 276 OF CRIMINAL PBOCEDUBE. [Paet IV. by affixing his signature to it.^ But where defendant had been tried and convicted before a trial justice for the unlawful sale of liquors, and, in the trial on appeal, the certified copy of the complaint alleged a different day for the sale from that stated in the original complaint, the copy having been allowed after verdict to be amended, the verdict was set aside and a new trial was granted.^ In an indictment for a capital arson the name of the owner of the house burned had been omitted. The objection was taken on defendant's arraignment ; and it was held that the indictment could not be amended by the insertion of the name, even with defendant's consent.^ § 359. On scire facias. The Police Court sent to the Municipal Court an extended recognizance, supplying, from their minutes, facts omitted in the form erone. It was held that this was not irregular, and constituted no defence to the sicre facias on the recognizance.* After default in a suit on a recognizance, the return of the recognizance was allowed to be amended, although the effect was to vary the contract.^ A recognizance taken by a police justice bound the party to appear in the Superior Court on a charge of " arson." The police justice was allowed to amend the recognizance by sub- stituting for "arson" the words " wilfully burning a shop," and the prosecuting attorney was allowed to amend the dec- laration on the recognizance accordingly. It was contended that as arson was not a bailable offence, the error was a mate- rial one, and avoided the recognizance ; but it was held that the amendment was within the discretion of the court.^ § 360. Arrest. It was held that St. 1791, prohibiting travel on the Lord's Day, did not authorize a complaint and warrant to be framed on that day ; and that an arrest on the Lord's Day under such a warrant was illegal, and the officer a trespasser.^ 1 C. V. Parker, 2 Pick. 550 (1824). 6 c. „. jjeia, u Allen, 488 (1866). 2 C. V. Dressel, 110 Mass. 102 « C. «. Cheney, 108 Mass. 33 (1871). (1872). 7 Pearce v. Atwood, 13 Mass. 324 ' C. V. Mahar, 16 Pick. 120 (1834). (1816). * C. t;. McNeUl, 19 Pick. 127 (1837). Chap. I.] ARREST. 277 When an indictment has been returned to the Supreme Court, if the defendant be already in custody, no process need issue for his arrest.^ A police officer authorized under a town by-law " to super- intend the police " of the town, may arrest for a yiolation of a town by-law, and under Gen. Sts. c. 18, §§ 38, 39, may arrest, on a warrant, anywhere in the State. ^ An officer's custody of his prisoner under a warrant contin- ues until the prisoner's discharge or a new commitment.^ A warrant from the Governor of the State to an agent " to take and receive " a fugitive from justice from another State authorizes him to arrest. And where there was a warrant to a sheriff also, on which the fugitive had been arrested, it was held that a subsequent release from this arrest by habeas cor- pus did not prevent his being again arrested on the warrant issued to the agent.* 1 "Webster v. C. 5 Cash. 386 (1850). 8 C. v. Morihan, 4 Allen, 585 (1862). 2 C. V. Martin, 98 Mass. 4 (1867). « C. v. Hall, 9 Gray, 262 (1857). CHAPTER II. AEEEST OF JUDGMENT. {St. 1864, c. 250.) § 361. What is suflBlcient ground. Whenever the indict- ment does not show on its face that an offence has been com- mitted judgment will be arrested, even if defendant pleaded guilty.^ Under St. 1830, removing a corpse without a license was held to be no offence unless it was for dissection ; and this purpose not being averred in an indictment under this statute, judgment was arrested.^ And so where an indictment for false pretences by means of a promissory note omitted to aver that defendant delivered the note to J. S.^ Under Rev. Sts. c. 50, § 17, the allowing of unlawful games, even for amusement, was a crime. In a prosecution under it, the stat- ute as to games for amusement had been repealed before the verdict ; and as the indictment was in respect to playing gen- erally, judgment was arrested.* Under St. 1855, c. 405 (Gen. Sts. c. 87, §§ 6 et seq.'), judgment was arrested because the house of ill-fame was not charged to be a common nuisance ; ^ as also in a case of larceny, where the complainant had signed in the blank space over the charge of larceny in the com- plaint ; the complaint not being " subscribed by the complain- ant.^ And words in the indictment which may have been the ground of the verdict cannot be rejected as surplusage in order to support a conviction.^ The statute requiring a "cer- tified copy " of the conviction to be sent up, the record of 1 C. V. Hearsey, 1 Mass. 138 (1804). o C. v. Davis, 11 Gray, 48 (1858). 2 C. u. Slack, 19 Pick. 304 (1837). « C. v. Barhight, 9 Gray, 113 3 C. V. Goddard, 4 AUen, 312 (1862). (1857). * C. V. Pattee, 12 Gush. 501 (1853). ' C. v. Atwood, 11 Mass. 93 (1814). Chap. II.j ARREST OF JUDGMENT. 279 conviction by a justice of the peace must be certified to be a true copy. It was held that where the only certification of the record sent up was " Attest, A. B., Justice of the Peace," this was not a legal certificate. There was nothing to show whether it was the original record or a copy ; and judgment was arrested.i If one count charge distinct ofEences, requir- ing different punishments, judgment will be arrested.^ Where the judge below overrules an objection made at the trial to the sufficiency of the indictment, and the case is brought up on exceptions to such ruling, if the exceptions are sustained judgment will be arrested.^ Judgment will always be arrested for any jurisdictional defect.* § 362. What is not suflaoient ground. It is no ground for arrest of judgment that another indictment for the same offence was pending at the trial ; ^ nor that the foreman of the grand jury signed only the initial letter of his first name ; ® nor that the indictment did not add to the words " in the District of Middlesex" " within the Commonwealth;"' nor that the complainant's name does not appear in the body of the complaint signed by him ; this not affecting the juris- diction of the court ; ^ nor that, the charge being the stealing of 1367, the verdict was " Guilty of stealing $317, and not guilty as to the residue ; " ^ nor, in larceny, that some of the articles stolen are insufficiently described in the indict- ment, though this may affect the punishment ; ^^ nor, in a case of forfeiture of liquors, that only certified copies of the papers were sent up to the Superior Court ; the statute making no provision on the subject, and the jurisdiction being therefore not affected ; ^^ nor, in murder, for the deceased not being averred to have been " in the peace of the Commonwealth ; "i^ 1 C. V. Sheehan, 12 Gray, 28 (1858). '' C. v. Shaw, 7 Met. 52 (1843). 2 C. I). Holmes, 119 Mass. 195 (1875). ^ c. c. Eagan, 10.3 Mass. 71 (1869). » C. V. Collins, 2 Cush. 556 (1848). ^ C. v. Duffy, 11 Cush. 145 (1853). * C. V. Galligau, 119 Mass. 195 1° C. v. Ea.stman, 2 Gray, 76 (1854). (1875). 11 C. V. Intox. Liq. 97 Mass. 600 5 C. V. Murphy, 11 Cush. 472 (1853). (1867). « C. V. Hamilton, 15 Gray, 480 l" c. w.Murphy, 11 Cush. 472 (1853). (1860). 280 I OB' CRIMINAL PBOCEDUKB. [Pakt IV. nor that an indictment for an assault on an officer did not sufficiently aver that the assault was made " knowingly ; " inasmuch as defendant could still be sentenced for a simple assault ; ^ nor, where a railroad company had been convicted of so laying out its road as to obstruct a highway, that after the verdict an act legalizing the obstruction had been passed by the legislature ; this not making the road legal ab initio.'^ If one count be good and the verdict general, judgment will not be arrested in the revisory court because the other counts are defective. The judgment and sentence below will be deemed to have been on the good count.^ Duplicity is no ground of arrest of judgment ; * if distinct offences, punish- able precisely alike, are charged in one and the same count, this may confuse and embarrass the defence ; but the remedy for it is a motion to quash, or to compel the prosecution to confine itself to one charge, when the prosecuting attorney may cure the defect by electing to proceed on one only ; and after a verdict of guilty of one offence there is no further ground for objection.^ In C. V. Costello, 121 Mass. 371 (1876), it was held that it is no ground for arrest of judgment that defendant was in prison and not present during his application for a new trial, although it involved the examination and cross-examination of witnesses on both sides. The rule, it was said, by which a defendant is entitled to be present at every step of the pro- ceedings, from arraignment to sentence, does not apply to a proceeding taken by the defendant himself, and not followed by a new judgment. (^Semble, here are three errors crowded into a few lines : (1.) The reason of the rule applies just as strongly to proceedings taken at defendant's instance as to those taken adversely to him ; and during the taking of testi- mony his presence may be a matter of vital importance to his rights. Plainly, in the examination and cross-examination of 1 C. V. Kirby, 2 Cush. 577 (1848). » Jennings v. C. 17 Pick. 80 (1835). 2 C. V. Railroad Co. 14 Gray, 93 * C. v. Tuck, 20 Pick. 356 (1838). (1859). ^ C. V. Holmes, 119 Mass. 195 (1875). Chap. II.] ABRBST OP JUDGMENT. 281 witnesses in defendant's absence, his counsel must be left more or less in the dark. (2.) A motion for a new trial is not addressed to the arbitrary discretion of the judge ; if suffi- cient cause for it be shown, a new trial is a legal right. (3.) The decision on such a motion is a passing upon a legal right, and is therefore virtually a new judgment.) Since St. 1859, c. 161, there is no appeal to the Supreme Court on a motion in arrest of judgment in criminal cases, the remedy being by bill of exceptions.^ § 36-3. When objection too late. After a general appear- ance and a verdict, it is too late to move in arrest of judgment for want of a proper service of the writ.^ And judgment will never be arrested for any mere formal defect ; as for erasures or interlineations in the indictment, though there is no cer- tificate showing when or by whom they were made ; ^ the proper remedy being by a motion to quash before plea or before trial.* And so as to defects in a warrant.^ Where a defendant is called for sentence and does not ap- pear, the court is not bound to decide his motion in arrest of judgment in his absence.® § 364. Cases from a justice's court. An interest of the magistrate in the penalty is no ground for arrest of judgment if the fact do not appear on the record.'' And it was held to be no ground that the first name of the justice to whom the complaint was made appeared, both in the caption and in the jurat, only by initials ; ^ nor that the record omitted to state defendant's arraignment in the justice's court. It was said that if defendant was not properly tried by the justice, he did have a new and proper trial de novo on appeal ; ^ and where the justice had misrecited the complaint in his record, but the complaint transmitted was sufficient in se, there was held to ^ C. V. Crawford, 12 Cush. 271 « C. t). Dowdican's Bail, 115 Mass. (1853). 133 (1874). 2 C. V. Gregory, 7 Gray, 498 (1856). ' C. v. Edwards, 12 Cush. 187 = C. V. Fagan, 15 Gray, 194 (1860). (1853). * C. C. v. Peck, 1 Met. 428 (1840). (1870). 6 c. V. Dow, 5 Met. 329 (1842). '^ C. V. Brown, 121 Mass. 69 (1876). ^ c. v. Crawford, 12 Cush. 271 ' C. 0. Lincoln, 9 Gray, 288 (1857). (1853). * C. V. Bosworth, 6 Gray, 479 (1856). » C. ■;. Moore, 3 Pick. 194 (1825). 298 OP CRIMINAL PIIOCEDX7KE. [Part IV. tions not argued in the Supreme Court are assumed to be waived.^ Where exceptions are sustained, the costs of papers in the Supreme Court are payable by the State.^ § 380. Special points. If defendant omit to have the question of idem sonans left to the jury, and it is decided by the court, his exception will not be sustained in the appellate court.^ Where, on a trial for the illegal sale of liquors, defend- ant had simply asked the judge to rule that the evidence was insufficient to convict, which request was refused, defendant was not allowed to object, on exceptions, that the evidence did not prove a want of authority to sell. If the point had been distinctly raised at the trial it might have been met.* The question whether a verdict should be set aside as against evidence cannot be raised on exceptions ; ^ the only way is by a motion for a new trial, the decision of which by the court below is final.^ Where at the trial the judge overrules defend- ant's objection to the sufficiency of the indictment, and the case is brought up to the Supreme Court on exceptions, and the objection is sustained, judgment will be arrested.'^ A de- fendant waives his right to be heard on exceptions by escap- ing from jail, the prosecution being entitled to have the de- fendant in court to abide the judgment on the decision.^ A refusal to allow defendant to withdraw a motion to quash after it has been granted, or a plea of not guilty to a second indictment for the same offence and to plead autrefois acquit, is no ground of exception ; because, the first indictment having been quashed, he cannot be deemed to have been in jeopardy upon it.3 A party cannot object to a ruling requested by himself ; i" and a defendant cannot found an objection to any proceeding taken on his own application for his own benefit ; else no privilege could ever be safely granted him.^^ 1 C. V. McCue, 121 Mass. 353 (1876). ' C. v. Collins, 2 Cush. 556 (1848). 2 C. «. Evans, 10 Gray, 463 (1858). « C. v. Andrew-s, 97 Mass. 543 8 C. u. Gill, 14 Gray, 400 (1860). (1867). * C. V. Dow, 5 Met.' 329 (1842). 9 C. -•. Gould, 12 Gray, 171 (1858). o C. o. Morris, 1 Cush. 391 (1848). M C. a. Locke, 114 Mass. 288 (1873). • C. <;. Hughes, 2 Allen, 518 (1861). " C. v. Sholes, 13 Allen, 554 (1866). CHAPTER \^II. INDICTMENT. INFQKMATION. {Gen. Sts. c. 112, §§ 8, 9 ; c. 158; c. 160, § 6 ; c. 161, §§ 20, 42, 45 ; c. 162, §§ 13, 23 ; c. 166, § 12 ; c. 171 — St. 1860, c. 186 ; c. 191, § 10 — /S. 1861, c. 181 —^i. 1864, e. 250 — ^ 1867, c. 164 — St. 1869, c. 433 — ;Si!. 1872, c. 232.) § 381. Proceedings generally. Rev. Sts. c. 136, § 9 (Gen. Sts. c. 171, § 9), requiring a return of the list of witnesses sworn before the grand jury, is directory merely, and the omis- sion of it is no ground for quashing the indictment.^ The grand jury may find a new indictment as a substitute for a former one without a new examination of the witnesses.^ A term of court is not discontinued by the judge's leaving to hold court in another county, though there be no adjournment from day to day ; so that an indictment found on evidence taken in such absence of the judge is not therefore invalid.^ (A court may be legally deemed to be in session notwithstand- ing the temporary absence of the judge ; but, semble, not when the judge is holding court in another county ; unless there be such a thing as judicial ubiquity.) An order to " lay an indictment on file " is not equivalent to a final judg- ment or a nol. pros., but is a mere suspension of proceedings in the case ; which may be called up and proceeded with on motion of either party. And this even if the order was made on condition of the payment of costs, and the costs have been actually paid. If the reason assigned for such order, as that "the statute under which the indictment was brought has 1 C. V. Edwards, 4 Gray, 1 (1855). » C. u. Bannon, 97 Mass. 214 (1867). 2 C. V. "Woods, 10 Gray, 477 (1858). 300 OF CRIMINAL PBOCEDTJEB. [Part IV. been repealed," be erroneous, it will be disregarded ; ^ so, where in a prosecution for an assault, an acknowledgment of satisfaction by complainant has been filed, the costs paid, and the indictment afterwards " laid on file," defendant is not thereby discharged ; for this can be done only by order of the court ; 2 and after an indictment has been laid on file the court may take up the case and order a new recognizance.^ § 382. Capital cases. The provision in St. 1869, c. 433, relative to transmitting notice and a copy of the indictment to the chief justice and the attorney general, is directory merely, and does not affect the jurisdiction of the court.* It is sufficient if the Municipal Court, on a capital indictment being found, certify it into the Supreme Court, without any adjudication accepting the indictment. All that is required in order to give the Supreme Court jurisdiction is that it be brought to the judicial notice of that court by being certified and transmitted according to law.^ Under St. 1844, c. 44, § 4 (Gen. Sts. c. 171, § 23), it was held that the Municipal Court was not required to fix any particular time for the in- dictment to be entered in the Supreme Court ; ^ and the pro- vision in this section requiring the accused to be served with a copy of the indictment by the sheriff or his deputy, with an order notifying him when the indictment will be entered (Gen. Sts. c. 171, § 22), is directory merely, and does not affect the jurisdiction of the court.^ Defendant in a capital case had pleaded not guilty before having counsel. The court afterwards refused to allow him to retract his plea in order to demur to the indictment, but heard his objections on a motion to quash.^ § 388. Grand jury. An indictment is not rendered invalid under Gen. Sts. c. 171, §§ 12, 13, by the fact that some of the grand jurors who participated in the finding of it had not been charged by the court,^ nor by the court's having sum- 1 C. V. Dowdican's Bail, 115 Mass. " Webster v. C. 5 Cush. 386 (1850). 133 (1874). « Ibid. 2 Ibid. ' Ibid. 8 Ibid. ' C. V. Chapman, 11 CnSh. 422 (1853). « C. u. Costley, 118 Mass. 1 (1875). » C.v. Sanborn, 116 Mass. 61 (1874). Chap. VII.] INDICTMENT. 301 moned, when there were less than twenty-three grand jurors present, a number more than sufficient in its judgment to make up deficiencies, allowance being made for absences and excuses.^ Grand jurors who have been excused, and have not joined their fellows in the deliberations, form no part of the grand jury by whom the indictment has been found.^ Whether the objection to an irregular constitution of the grand jury must be taken before pleading the general issue is not yet de- cided.^ It is not a valid objection to an indictment for an offence for which a fine is imposed for the use of a town, that the foreman of the grand jury is a taxable inhabitant of the town. The legislature may constitutionally provide thatt a small and remote corporate interest shall not disqualify a juror. Even where a fine goes to the Commonwealth every juror has a remote interest in it ; and where should the line be drawn ? * § 384. Caption. Where the caption was " at a term begun and holden on the first Monday of July," the indictment was not quashed, though that day was dies non juridicus. The caption shows only when the term began, not the day when the indictment was f ound.^ A defective description of a term of the court in the caption is not material where the clerk's certificate upon it distinctly shows the date of the presentment of the indictment by the grand jury, and where the offence is charged as havifig been committed before that date. The defective portion may be rejected as inconsistent with these facts, and as manifestly erroneous.^ Where the words in the caption were " Superior Court for the Commonwealth of Mas- sachusetts," the phrase " for the Commonwealth of Massachu- setts " was treated as surplusage.^ An indictment is good though the offence was committed after the commencement of the term, if it was before the bill was found ; but then the cap- 1 Crimm v. C. U9 Mass. 326 (1875). « C. v. Smith, 108 Mass. 486 (1871) ° Ibid. 0. V. Brown, 116 Mass. 339 (1874). * I'''d- ' Doherty u. C. 109 Mass. 359 * C. V. Eyan, 5 Mass. 90 (1809). (1872). ' C. V. Chamberlain, 107 Mass. 209 (1871). 302 OP CKIMINAL PROCEDURE. [Part IV. tion should state that it was found at a term beginning on such a day, and continued by adjournment to a day after the offence ■was committed.^ Where the caption of an indictment stated it to have been found " on the first Monday of , in the year of our Lord one thousand eight hundred and sixty — ," the offence being charged to have been committed on January 1, 1868, and between then and the finding of the indictment, it was held that it might be shown by the clerk's certificate upon it that the indictment was returned and presented September 11, 1868.^ It is no objection to a caption of " the first Mon- day of January " that the grand jury was not in fact empan- elled till the next day.^ § 385. "When an indictment wiU be cjuashed. It was held that a refusal to quash an indictment was in the discre- tion of the court, and could not, therefore, be excepted to ; and that it should not be quashed in doubtful cases, but only when it would be clearly insufficient to sustain a judgment against the defendant.* But this ruling was made before St. 1864, c. 250, § 3, which allows no motion in arrest of judgment for any cause existing before verdict, unless affecting the jurisdiction of the court. Since that statute the decision of a judge over- ruling a motion to quash an indictment before the jury was sworn may be excepted to.^ Where the name of the town indicted had been altered after indictment found, the court refused to quash ; ^ but for interlineations and abbreviations it was held that the indictment might be quashed before plea or trial.'' It is no ground to quash an indictment that it contains an immaterial allegation, or a count in which the offence is not properly charged, if there appear on it the commission of an offence stated with proper precision.^ § 386. Formal requisites. In Massachusetts, a bill found " at a Court of Common Pleas for the County of Hampshire," 1 C. V. Gee, 6 Gush. 174 (1850). " C. v. Philipsburg, 10 Mass. 78 2 C. V. Hines, 101 Mass. 33 (1869). (1813). 3 C. V. Colton, 11 Gray, 1 (1858). ' C. v. Desmarteau, 16 Gray, 1 * C. V. Eastman, 1 Gush. 189 (1848). (1860). 5 G. V. McGovern, 10 Allen, 193 8 c. v. Parmenter,- 121 Mass. 354 (1865). ■ (1876). Chap. YII.] INDICTMENT. 303 " and the jurors for said Commonwealth on oath present," &c., sufficiently shows it to have been found by the grand jury of the County of Hampshire," ^ and if the caption purports that the bill was found at the Court of Common Pleas in Hamp- shire, and charges an offence committed at a place " in said county," this is a sufficient averment of the place of finding.^ These words in the caption, " Commonwealth of Massachusetts, Essex, to wit : at a court," &c., " at Salem,, County of Essex," sufficiently show the court to have been held in Massachusetts.^ Where an indictment is presented " on oath and affirmation," it need not be stated why some of the jurors were affirmed.* . An indictment purporting to be found on the first day of the term is valid, though actually found on a subsequent day of the same term ; ^ and so is an indictment not signed, indorsed, or countersigned by the district attorney.^ The certificate or signature of the foreman need not appear on the record.^ It is no ground to quash a capital indictment that the Chris- tian name in the foreman's signature is given only by its initial letter.^ If the offence be within the jurisdiction of the District Court, the want of an allegation of defendant's resi- dence is immaterial under Gen. Sts. c. 172, § 19.^ In England, and in some of our States, the omission of the certificate of the indictment being " a true bill " is fatal ; but this is not the case in Massachusetts.'*' A district attorney's signature to an indictment need not show of what district he is attorney .^^ Even before St. 1864, an erasure or an interlineation in an in- dictment was no ground for arrest of judgment, though there were no certificate stating when or by whom it was made.^^ In a date giving the year the addition " of our Lord " is not essential.!^ The foreman's signature to " a true bill " legally 1 C. V. Edwards, 4 Gray, 1 (1855). » C. v. Gleason, 110 Mass. 66 (1872) ; ^ Ibid. C. V. Hamilton, 15 Gray, 480 (1860). s C. V. Fisher, 7 Gray, 492 (1856). 9 C. u. Taylor, 113 M.iss. 1 (1873). * Ibid. 1" C. V. Smith, 11 Cush. 473 (1853). 6 C. V. Hamilton, 15 Gray, 480 " C. i/. Beaman, 8 Gray, 497 (1857). (I860). . 12 C. «. Eagan, 15 Gray, 194(1860). « C. V. Stone, 105 Mass. 469 (1870). w C. v. Doran, 13 Gray, 37 (1859) ; ' Doherty v. C. 109 Mass. 359 C «. Sullivan, 13 Gray, 97 (1859). (1872). 304 OF CRIMINAL PEOCEDUEB. [Pakt IV. imports it to have been found by twelve or more jurors.^ Even before St. 1864 it was no cause for arrest of judgment that, in an indictment for giving false answers to selectmen, and voting, without being qualified, for state officers and for senators " for the district of Middlesex," the words " with- in the Commonwealth" were not added.^ An indictment for a murder at " Chickopee " for " Chicopee " is good, the words being idem sonans? Where a caption began " at the Superior , begun and holden," &c., the omission of the word "court " was held to be immaterial, the record elsewhere showing that the indictment had been duly returned and filed in the Superior Court.* Judgment may be entered on a mu- tilated indictment, provided it may be made intelligible by pasting the pieces together.^ § 387. Waiver of defects. In 0. v. Parker, 2 Pick. 550 (1824), it was queried whether an objection to the personal qualification of a grand juror, or to the legality of the return to the venire (as for want of the constable's signature), must be taken before indictment found. If defendant proceed to trial \7ith0ut objecting that in the copy of the indictment the foreman's signature had not the official addition to his name, the objection is waived ; ^ and any mere formal defect, such as the alternative phrase of " tenement or shop," must be ob- jected to before judgment below.'^ And now, by St. 1864, c. 250, § 2, the objection to all formal defects appearing on the face of the indictment must be taken by demurrer or motion to quash. § 388. Information. Though an information recited that it was filed by order of the House of Representatives of Mas- sachusetts, the court declined to quash it, deeming it never- theless to have been filed by the attorney general ex officio? If a statute create an offence and prescribe the mode of pun- ishing it, that mode only can be followed. So, where a statute 1 Turns v. C. 6 Met. 224 (1843). « C. v. Roland, 97 Mass. 598 (1867). * C. V. Shaw, 7 Met. 52 (1843). 6 c. ti. Betton, 5 Cush. 427 (1850). » C. V. Desmarteau, 16 Gray, 1 ' C. w. Walton, U Allen, 238 (1865). (1860). ' C. V. Fowler, 10 Mass. 290 (1813). * C. V. Mullen, 13 Allen, 551 (1866). Chap. VII] INFOEMATION. 305 declared that certain moneys might be recovered by indictment, an information was held not warranted.^ (Informations for additional punishment are treated of under the head of Sen- tence.) 1 C. V. Howes, 15 Pick. 231 (1834). 20 CHAPTER Vm. JURY AND JTJBOES. {Gen. Sts. c. 132 ; c. 172, § 2 — Sit. 1860, c. 143.) § 389. The grand jury must never be less than thirteen^ nor more than twenty-three in number.^ The court will not instruct the grand jury, at defendant's instance, as to the nature of the evidence proper to be received by them.^ It was queried in C. v. Parher, 2 Pick. 550 (1824), whether, on the court's seeing that a venire for a grand juror had not been signed, the grand jury should be empanelled until there was an amended return. § 390. Grand jurors who have been excused, and who have not joined their fellows in their deliberations, form no part of the grand jury by which the indictment is found.^ When grand jurors have been sworn by the clerk in presence of the court, they are legally charged with the performance of their duties so far as any action of the court is required.* A grand juror who was not present at the charge may be sworn and briefly charged, and then join his fellows.^ A grand juror will not be set aside because he had been the prosecutor of one charged with a capital crime, and whose case may come before the grand jury.* It is no objection to an indictment for an offence on which a fine is imposed to the use of a town, that the foreman of the grand jury which found the indictment is a taxable inhabi- tant of the same town ; for otherwise the offence could not be 1 Crimm », C. 119 Mass. 326 (1875) ; * Ibid. C. ». "Wood, 2 Gush. 149 (1848). ^ "Wadliu's case, 11 Mass. 142 (1814). 2 C. V. Knapp, 9 Pick. 495 (1830). « Tucker's case, 8 Mass. 286 (1811). 8 Crimm V. C. 119 Mass. 326 (1875). Chap. VIII] JUEY AND JURORS. 307 prosecuted at all. The legislature may copstitutionally pro- vide that a small and remote corporate interest shall not dis- qualify a juror. Even where the fine goes to the Common- wealth, every juror has some remote interest in it as a taxable inhabitant of the State.^ A member of the grand jury is competent as a witness to testify whether a certain person was examined before them.^ Gen. Sts. c. 132, relating to the drawing and selecting of grand jurors is constitutional. Before and since the adoption of the Constitution, the legislature has exercised the power of determining the class of persons from which jurors are to be drawn, authorizing lists to be made of such persons as the municipal authorities might select from that class.^ By St. 1875, c. 5, the grand jurors empanelled at the Janu- ary term of 1875, in Suffolk, were to be deemed grand jurors of the county legally drawn, summoned, returned, and em- panelled, for each terra within the six months, notwithstand- ing any irregularities in the venire facias, or in the drawing, summoning, returning, or empanelling of the said grand jury. It was held, that an indictment presented after the passage of this act was valid. The legislature could, by a general law, have directed these things to be done exactly as they were done, and the act did no more. The act therefore operated constitutionally on future indictments, and it was not ex post facial To impeach a witness for the prosecution, defendant may prove by a grand juror that the witness testified differ- ently before the grand jury.^ § 391. Trial jurors. Where two of the grand jurors who found the indictment sat as traverse jurors on the trial, the verdict was set aside and a new trial granted.^ A juror who has been sworn in chief, but supposed it was only on voire dire, must be sworn again.^ A Methodist minister liable to be called to preach anywhere within a reasonable distance of 1 C. V. Ryan, 5 Mass. 90 (1809). » C. v. Mead, 12 Gray, 167 (1858). 2 C. V. Hill, 11 Cash. 137 (1853). s c. v. Hussey, 13 Mass. 221 (1816). 8 C. V. Brown, 121 Mass. 69 (1876). ? C. v. Knapp, 9 Pick. 496 (1830). * Ibid. 308 OP CRIMINAL PROCEDtTBB. [Paet IV. his home was held to be a " settled minister," under the ex- emptions from serving on juries in St. 1812 (Gen. Sts. c. 132, § 2).^ A member of the legislature is exempt from jury- duty during its session.^ A juror may be excluded by the court, if he have an opinion adverse to the constitutionality of the statute under which defendant is to be tried.* (But this doctrine seems questionable. If the jury must take the law from the court, it is not to be presumed that the juror will violate his duty. If, on the other hand, the jury may judge of the law, why should such an opinion disqualify a juror any more than the holding of an opposite opinion should disqualify the judge from presiding at the trial ? ) Trial jurors are fur- ther treated of under the head of Challenge op Jxjkoks. 1 C. V. Bazzell, 16 Pick. 153 (1834). ' C. v. Austin, 7 Gray, 51 (1856). 2 C. f. Walton, 17 Pick. 403 (1835). CHAPTER IX. JUSTICES OF THE PEACE. {Gm. Sts. c. 86, §§ 42 et seq. ; c. 88, §§ 49, 78 ; c. 116, §§ 12 et seq. ; c. 120, §§ 32 efseq.; c. 169; c. 173, §§ 1 et seq. — St. 1860, c. 187 — Si!. 1871, cc. 115, 386— Si. 1872, c. 358 — /%. 1874, c. 258 — /Sf. 1877, c. 211.) § 392. Jurisdiction. In Pearce v. J-^jfiootZ, 13 Mass. 324 (1816), it was held that any interest of the justice in the pen- alty, however small, took away his jurisdiction ; that the jus- tice, being an inhabitant of the town to which one moiety of the penalty was given, had therefore no lawful jurisdiction of the case ; that the only exception to the rule was where there was a necessity that the interested person should act in order to prevent a failure of justice ; and that in the case of C. v. Ryan, 5 Mass. 90 (1809), there was such necessity. But the legislature, even before this decision was rendered, to avoid the difficulty in future cases, made an appropriation of the penalties which took away the interest of inhabitants of towns. A warrant issued by one justice may be made returnable before another one in the same county who may try the case, under Rev. Sts. c. 135 (Gen. Sts. c. 170, § 10).i If a justice of the peace continue to act after accepting an incompatible office, he is still a justice de facto as to third persons, and his warrant justifies the officer. But, in Massachusetts, the office of justice of the peace is not incompatible with that of consta- ble, where he does not act in both capacities in the same case.^ Where defendant was charged with " feloniously setting fire ' only, and not with " burning " or " attempting to burn," it was held that the charge still imported a high crime, in re- 1 C. V. Wilcox, 1 Cush. 503 (1848). = C. ,). Kirby, 2 Cash. 577 (1848). 310 OF CEIMIlirAL PEOCEDUKE. [Pakt IV. spect to which a justice of the peace could hear evidence and adjudge whether defendant should be held to answer.^ A justice of the peace, who was also a trial justice, issued a war- rant to take defendant before himself " or some other justice of the peace of the county." It wafe objected that under St. 1850, c. 314, § 4, the warrant could be made returnable only before a " trial justice." But it was held that as the justice had jurisdiction, defendant had waived the objection to the irregularity in the warrant by not making it before the jus- tice.^ The grant of exclusive jurisdiction to police courts does not deprive justices of the peace of the power to issue warrants returnable to those courts.^ Under Gen. Sts. c. 120, § 36, and c. 86, § 42, trial justices have jurisdiction in proceed- ings for the search of liquors, and the warrant may be rightly made returnable before the same trial justice who issued it, though not living in the town.* Under St. 1858, c. 45 (Gen. Sts. c. 120, § 37), trial justices have jurisdiction of all offences subject to a fine of fifty dollars, or to six months imprisonment, or to both. St. 1855, c. 215, § 33 (Gen. Sts. c. 86, § 57), re- quires every person convicted of an unlawful sale of liquor to enter into a recognizance of $1,000 that he will not violate any liquor law of the Commonwealth within one year. It was contended that under this latter statute a trial justice had no jurisdiction. But it was held that the limitation in St. 1858 of fifty dollars fine and six months' imprisonment was intended merely as the general standard of jurisdiction, which was- not limited by the provision in St. 1855 ; the fl,000 recognizance not being an essential part of the punishment, and only inci- dental to the jurisdiction.^ Under St. 1791, c. 58, a justice of the peace had no jurisdiction in cases of travelling on the Lord's Day, where the offender was not an inhabitant qf the county.^ Under St. 1783, c. 50, a justice of the peace could not take a recognizance from a convict of felony who had es- 1 C. V. Flynn, 3 Cush. 525 (1849). * C. v. Intox. Liq. 97 Mass. 63 2 C.v. Henry, 7 Cush. 512 (1851). (1867). 8 C. V. O'Connell, 8 Gray, 464 5 c. ;;. Burns, 14 Gray, 35 (1859). (1857). 8 Pearce a. Atwood, 13 Mass. 324 (1816)! Chap. IX.] JUSTICES OF THE PEACE. 311 caped into another State and had been brought back to Mas- sachusetts ; the court in which he was convicted alone having jurisdiction.^ A clerk of the Superior Court is not disqualified to act as trial justice from being entitled to fees as clerk on all appeals to the Superior Court.^ § 393. Taking of reoognizanoes. A justice of the peace may bind over for trial for all offences of which he has con- current jurisdiction.^ In 0. v. Morey, 8 Mass. 78 (1811), it was held that he could bind over to keep the peace only to the next court, and could not sentence to pay costs one who refused to find sureties. Under St. 1788, c. 51, § 1, he could not admit to bail one who had been committed by another justice.^ He could not take a recognizance from one charged as a receiver of stolen goods to the party from whom they were stolen to secure the treble damages given by St. 1784 ; this provision applying only to the thief.^ In C. v. Cheney, 6 Mass. 347 (1810), it was held that a justice of the peace cannot hold to bail for an offence which may be prosecuted by information qui tarn as well as by indictment ; for an indict- ment, in that case, would not be indefeasible. It was said that no one is liable to be imprisoned or compellable to give ' bail, unless the Commonwealth have a right to prosecute him which cannot be defeated by a subsequent information. So the recognizance was held void. (But this decision is ques- tioned in Knowles v. Davis, 2 Allen, 63 (1861). 1 C. V. Otis, 16 Mass. 198 (1819). * C. v. Canada, 13 Pick. 86 (1832). 2 C. u. Keenan, 97 Mass. 589 (1867). ^ Vose v. Deane, 7 Mass. 280 (18U). 8 C. V. Harris, 8 Gray, 470 (1857). . CHAPTER X. NEW TEIAL. {Gen. Sis. c. 173, §§ 7 et seq.) § 394. When granted. The question of sufficiency of evi- dence to justify conviction cannot be raised on exceptions ; but only on a motion to set aside the verdict ; that is to say, for a new trial, on the ground of the verdict being against evidence; and the judge's decision on such motion is final.^ An abstract proposition in a charge to the jury, though cor- rect in itself, may be cause to set aside the verdict, if applied to a state of facts to which it was not pertinent.^ Where two of the traverse jurors were members of the grand jury that found the bill, a new trial was granted.^ Under Gen. Sts. c. 173, § 7, after a capital sentence, the Supreme Court may grant a new trial on newly discovered evidence within one year after the trial.* The admission of illegal testimony on the trial, after objection by defendant's counsel, entitles him to a new trial.* And in 0. v. Scott, 123 Mass. 222 (1877), it was queried whether a new trial should not be granted even if the incompetent evidence should be afterwards stricken out, and the jury instructed to disregard it. In a trial for embezzlement, evidence, to prove the intent, of an- other embezzlement in the same week is admissible only when the jury is instructed as to its effect ; and when the case comes into the Supreme Court on the judge's report, it is pre- sumed that if such instruction had been given he would have 1 C.U.Hughes, 2 Allen, 518 (1861). * C. v. McElhaney, 111 Mass. 439 2 C. V. Maloney, 113 Mass. 211 (1873). (1873). ' C. V. Green, 17 Mass. 515 (1822). « C. V. Hussey, 13 Mass. 221 (1816). Chap. X.] NEW TEIAL. 313 reported it ; and this fact not appearing, defendant is entitled to a new trial.^ Where defendant pleads both autrefois con- vict and not guilty, issue must be taken on the first plea and must be tried before the trial on non cul. If put to' trial on both, against his objection, and the judge decides against him on autrefois convict, defendarft is entitled to a new trial though the judge's decision was correct. A defendant has the right to be tried according to legal forms, and so, in this respect, he has been injured.^ Defendant's counsel having reflected on the witnesses for the prosecution as " policemen," the judge told the jury that they had testified with apparent candor and intelligence. It was held that the judge went out of his sphere, and a new trial was ordered.* In a case decided be- fore St. 1858, abrogating additional punishments founded on prior convictions, it was held that a general verdict was not sustainable where the indictment alleged a former conviction as an aggravation, requiring additional punishment, and no evidence had been given of it in the trial. " Not guilty " had put the fact in issue, and a new trial was granted ; * and the same relief was granted in a similar case, on the ground that the alleged former conviction might have tended to make the jury satisfied with less evidence than they would have other- wise required.^ Where a defendant had been tried on several complaints for the unlawful sale of liquors, and the evidence sufiiced only to prove one sale, it was held that he might be sentenced upon that, and have a new trial on the other com- plaints.^ § 395. When refused. It is no cause for a new trial that a legal juror had been taken from the panel, defendant not ob- jecting at the time.'' A verdict will not be set aside on ac- count of any irregularity or misconduct on the part of jurors, unless the verdict might have been influenced by it.^ It is no ground for a new trial that the judge, on the jury's return- 1 C. 0. Shepard, 1 Allen, 575 (1861). ^ q. „. Briggs, 7 Pick. 177 (1828). 2 C. c. Merrill, 8 Allen, 545 (1864). 6 c. o. Eemby, 2 Gray, 508 (1854). » C. V. Barry, 9 Allen, 276 (1864). ' C. v. Stowell, 9 Met. 572 (1845). « C. V. Briggs, 5 Pick. 429 (1827). ' C. v. Roby, 12 Pick. 496 (1832). 314 OP CRIMINAL PROCEDURE. [Pakt IV. ing for instructions, had charged them on points on which no instruction was asked.^ After a conviction of selling " spirit- uous liquors," it was held that a new trial could not be granted 'because defendant would be able to prove a license for the sale of fermented liquors, and thus raise a question as to the mere form of the indictment.^ Where on a trial for the unlawful sale of liquors, the judge had erroneously ruled that it was not incumbent on the prosecution to prove that the sales were made without lawful authority, a new trial was nevertheless refused, the facts proved being sufficient to show this, and defendant not being therefore harmed by the erroneous ruling.^ In C. v. Jenkins, 10 Gray, 485 (1858), it was queried whether, if one of the jurors was not an in- habitant of the county, and this was not known to defendant before the verdict, it would be ground to set it aside. § 396. The motion. The rule, that defendant is entitled to be present at every step of the proceedings, from arraignment to sentence, is not applicable to a motion for new trial by a defendant in custody ; the proceeding being instituted by de- fendant himself, addressed to the discretion of the court, and not followed by a new judgment. When defendant is not in custody, the motion will not be entertained in his absence, in order that, if it be overruled, he may be committed.* 1 C. (/. Snelling, 15 Pick. 321 (1834). « C. u. Costello, 121 Mass. 371 2 C. V. ChurchiU, 2 Met. 118 (1840). (1876). 8 C. u. Cashman, 8 Allen, 580 (1864). CHAPTER XI. NOLLE PROSEQUI. § 397. "When entered. After a conviction on the whole indictment, and one of the counts has been covered by a former conviction, the prosecution may enter a nol. pros, on that count.^ Nol. pros, may be entered either on the whole indictment, or on any one count, or on any distinct or substan- tive part of a count. Thus, where the indictment charged that defendant broke and entered, &c., " and did commit larceny," it was held, after verdict, that the prosecution might enter a nol. pros, as to the first part of the charge, leaving the conviction of larceny to stand.^ The prosecution may enter a nol. pros, on the counts upon which the jury have disagreed, and take judgment on the count on which a verdict was ren- dered.^ § 398. When not allowed. On failure of proof of some material part of the description of the offence, a nol. pros, is not allowed ; defendant being in such case entitled to a ver- dict.* The court never recommends the prosecuting attorney to enter a nol. pros. ; leaving it always to his discretion.^ The prosecuting attorney had agreed with a defendant in- dicted as a common seller to enter a nol. pros, on condition that he would stop selling. On .a second prosecution of the same defendant, the court presumed that the prosecuting at- torney had evidence to satisfy him that defendant had vio- 1 C. V. Briggs, 7 Pick. 177 (1828). " C. u. Wade, 17 Pick. 395 (1835). ■^ C. V. Tuck, 20 Pick. 356 (1838). ^ c. v. Andrews, 2 Mass. 409 (1807). * C. V. Stedman, 12 Met. 444 (1847). 316 OF CRIMINAL PROCEDURE. [Part IV. lated the condition ; but the jury were instructed that they could not convict except on proof of sales made after the agreement.^ After the jury is empanelled, and before conviction, a nol. pros, cannot be entered without defendant's consent. He is entitled to have the jury pass upon the case, and to the ben- efit of the verdict, which will bar a future indictment.^ 1 C. 1.. Cutler, 9 Allen, 486 (1864). 2 C. v. Scott, 121 Mass. 33 (1876) ; C. V. Tack, 20 Pick. 356 (1838). CHAPTER XII. PAEDON. (^Constitution, ch.ii., sect, i., viii. — Gen. Sts. c. 177, §§ 12 et seq. — St. 1867, c. 301.) Particulaks. § 399. Pardon. In Massachusetts the Executive has power to pardon after conviction ; by which is meant conviction by verdict, or by confession in open court.^ Under St. 1867, c. 301, § 2, where a prisoner is remanded by the Executive to the state prison for breach of a condition of the pardon, it can be only for the unexpired period of his sentence ; and the time between the pardon and his subsequent arrest for the purpose of taking him before the governor and council is to be reckoned as part of the term of his sentence.^ A pardon is waived if not pleaded at the first opportunity ; ^ and a plea of pardon is a waiver of all exceptions taken and pending.* § 400. Particulars. It seems that both in criminal and in civil cases the ordering of a bill of particulars is in the dis- cretion of the judge.^ In a prosecution for a libel charging official misconduct, the court may order defendant, if he in- tends to prove the truth of the charge, to specify instances in a bill of particulars, and no other instances than those speci- fied will be allowed to be proved on the trial.^ If a defendant has been really misled by an insufficient bill of particulars, it is good ground for postponing the trial.'^ A bill of particulars had been furnished to defendant under 1 C. V. Lockwood, 109 Mass. 323 ' Ibid. (1872). 5 c. V. Giles, 1 Gray, 466 (1854). 2 West's case, 111 Mass. 443 (1873). « C. t. Snelling, 15 Pick. 321 (1834). 8 C. 1^. Lockwood, 109 Mass. 323 ' C. w. Davis, 11 Pick. 432 (1831). (1872). 318 OF CRIMIITAIi PROCEDURE. [Part IV. a complaint for keeping a liquor nuisance during a certain period specified. It was held that the particulars furnished were no part of the record, and that on the trial in the appeal court, no particulars being there furnished or moved for, the prosecution was not bound by them.^ i C. V. Farrcll, 105 Mass. 189 (1870). CHAPTER XIII. KECOGNIZANCES. {Gen. Sis. e. 86, §§ 53, 57, 59 ; c. 165, § 32 ; cc. 169, 170 ; c. 171, § 30 — ;&. 1862, cc. 159, 169 — St. 1863, e. 59 — St. 1874, cc. 306, 394.) § 401. Requisites for validity. A recognizance to answer to an indictment in the Court of Common Pleas, for the viola- tion of the "Act concerning the manufacture and sale of spirit- uous and intoxicating liquors," was held sufficient imder Rev. Sts. c. 135, § .30.1 Though a defendant be not triable by the Su- perior Court for an assault, a recognizance taken in the Mu- nicipal Court to appear before the Superior Court, " to answer to said complaint for the crime aforesaid," is valid, and binds defendant to appear and answer any indictment that may be there substituted for the complaint.^ But a recognizance only " to answer to such matters and things as should be objected against him on behalf of the Commonwealth" is insufficient. The charge to be answered must be specified.^ Where the magistrate has no jurisdiction to try, but only power to examine and commit for trial, a recognizance to prosecute an appeal, reciting a conviction, is void.* Where, though separate recognizances had been or- dered for A. and B., C. and D. had been made to enter into a recognizance for A. and B. jointly, it was held invalid both as to principal and sureties ; for C. would thus be liable for the appearance of both A. and B. ; and the same as to D. ; though the sureties were stated to be " severally indebted," " each in 1 C. V. Nye, 7 Gray, 316 (1856). s C. v. Daggett, 16 Mass. 447 (1820). '^ C. u. Butland, 119 Mass. 317 * C. u. Collins, 11 Gray, 465 (1858). (1875). • 320 OF CBIMINAL PROCEDUKE. [Part IV. the sum," and " as sureties for each." ^ Under Rev. Sts. c. 86, § 1 (Gen. Sts. c. 173, § 1), and c. 138, § 13 (Gen. Sts. c, 173, § 9), exceptions are to be entered at the next term of the Supreme Court ; and a recognizance to enter and prosecute them at the court " then in session " was held void.^ But where a defendant, convicted in the Common Pleas, had filed exceptions and recognized to appear, not at the next term of the Supreme Court, as the statute required, but at the term after it, and at the latter term defendant argued that this was a discontinuance of the case, the recognizance being void, and the court having no jurisdiction, it was held that it was the exceptions that removed the case to the appellate court, and that it was not the recognizance that gave jurisdic- tion ; it being a mere incident to it.* § 402. Jurisdiction. A commissioner to take bail may act, though the court be in session for proceedings before the grand jury.* St. 1862, c. 159, requiring a commissioner to take a written certificate under oath from the sureties in admitting to bail persons convicted in the Superior Court in Suffolk, does not deprive him of the power he had before to take a written statement in other cases.^ Under St. 1783, c. 51, requiring a justice of the peace to commit one charged with a capital offence to prison, a recog- nizance taken by a justice in such a case was held void.* Under the same act, one justice, it was held, could not admit to bail one who had been committed by another.'^ In Q. v. Cheney, 6 Mass. 347 (1810), it was held that a justice of the peace could not hold to bail for an offence that might be pros- ecuted by information qui tarn as well as by indictment, as an indictment would in that case be defeasible. But this doc- trine is questioned in Knowles v. Davis, 2 Allen, 63 (1861). Under St. 1784, a justice of the peace could not take a recog- nizance from one charged as a receiver of stolen goods to the 1 C.w. Field, 9 Allen, 581 (1865). « C. «. Butland, 119 Mass. 317 2 C. V. Harley, 9 Met. 467 (1844). (1875). 3 C. V. Dow, 5 Met. 329 (1842). « C. ti. Loveridge, 1 1 Mass. 337 (1814). * C D, Merriam, 9 Allen, 371 (1864). ' C. v. Canada, 13 Pick. 86 (1832). Chap, XIII.] RECOGNIZANCES. 321 party from whom they were stolen, to secure the treble dam- ages given by the statute ; they being given only against the thief.i It ^as held in G. v. Morey, 8 Mass. 78 (1811), that a justice of the peace could bind over to keep the peace only till the next court, and could not sentence to pay costs one who refused to find sureties ; and in G. v. Otis, 16 Mass. 198 (1819), that under St. 1783, c. 50, a justice could not take the recognizance of a convict of felony who had escaped into another State and been brought back into Massachusetts, the court in which he was convicted alone having jurisdiction. A recognizance taken before a justice of the town to which the penalty would go was held void, there being no statute re- moving the disqualification, and there being another magis- trate in the county before whom it might have been taken.^ A defendant who had been defaulted in the Superior Court on a recognizance taken in the Police Court was arrested and brought into court, and ordered to give a second recognizance. The commissioner would have had no jurisdiction to take the second recognizance, unless it had appeared to the court that defendant had a reasonable excuse for his default on the first one ; and this was presumed, under the rule, omnia rite acta prcetumuntur, which applies to all superior courts.^ § 403. Forfeiture. A neglect to appear personally forfeits the recognizance.* A recognizance to appear and abide the judgment of the Supreme Court is broken by defendant's fail- ing to appear in the Common Pleas, to which the case had been sent down by that court.'^ Defendant's default fixes the liability of the bail.^ One indicted and fined for a breach of the peace while under recognizance is still liable to the pen- alty fixed in the recognizance.'^ Where a recognizance was taken to keep the peace, and also to answer to an indictment, and there had been no default in keeping the peace, the court, in its equity jurisdiction, reduced the forfeiture to such a sum ' Vose V. Deane, 7 Mass. 280 (18U). ^ C. u. Austin, 11 Gray, 330 (1858) 2 C. o. McLane, 4 Gray, 427 (1855). « C. ». Dowdican's Bail, 115 Mu.s. » C. V. Siioles, 13 Allen, 396 (1866). 133 (1874). * C. V. McNeil], 19 Pick. 127 (1837), ' C. v. Braynard, 6 Pick. 113 (1828). 21 322 OF OBIMINAL PROCEDURE. [Part IV. as would have been reasonably required in a recognizance merely to answer.^ § 404. On appeal. If a defendant has been made to enter into a recognizance on appeal that is not legal, this does not deprive the appellate court of jurisdiction.^ When an appeal has been properly taken and entered, this suffices to give the appellate jurisdiction. Any error in the recognizance is im- material ; as where a defendant has been made to recognize to prosecute the appeal at the May term of 1871, instead of 1870.^ And it is no ground for arrest of judgment that the justice of the peace had required of defendant a recognizance not authorized by law, as a condition of appeal ; defendant having complied with the requirement, and the appeal hav- ing been allowed. In order to raise the question, defend- ant, af ber claiming the appeal, should have offered to do all the statute required, refusing to comply with the illegal or- der ; and the court would then have to pass upon his right to prosecute the appeal.* Under St. 1832, the appeal had to be made and the recognizance given before the end of the term in which defendant was convicted; " conviction " in the statute meaning a verdict of guilty.® Under Rev. Sts. c. 188, § 5, the appellant was required to recognize in the Common Pleas, and, failing this, to be committed till he should recognize, thus giving him a chance to procure bail in vacation ; and if a defendant claiming an appeal did not recognize with sureties to the court appealed from, or, before the rising of the court, did not appear for commitment, the appeal was dismissed.^ § 405. Procedure. In Q. v. Ward, 4 Mass. 497 (1808), it was held that where articles of peace were exhibited be- fore a justice of the peace, the power of the justice was lim- ited to taking a recognizance from the prisoner for his appear- ance at the next court having jurisdiction of the offence charged, and that the justice could not require him to find 1 C. V. M'Neill, 19 Pick. 127 (1837). * C. v. Lynch, 14 Gray, 383 (1860). 2 C. v.Leighton, 7 Allen, 528 (1863). 6 c. o. Richards, 17 Pick. 295 (1835). « C. V. Campion, 105 Mass. 184 ' C. fc. Dunham, 22 Pick. 11 (1839). (1870). Chap. XIII.] KBCOGNIZANOES. 323 sureties of the peace for the term of two years. A recogni- zance to appear, under Rev. Sts. c. 135, § 30 (Gen. Sts. c. 170, § 49), must be returned to the justice of the peace who or- dered it, by the magistrate taking it, before it can be sent up to the court for the issuance of a scire facias, and an omission to record the default is no longer a bar to an action on the recognizance. 1 A commissioner to take bail may return an unextended recognizance to the court, on which a default may be taken ; and the recognizance would then be suable, though an extended return should be afterwards filed on which no default was taken. In this case, the recognizance was to ap- pear at the same court which had ordered it to be taken. It would have been different if it had been taken by an inferior court to appear in a superior court. In that case, there could have been no proceedings upon it till it had been extended and filed.^ A recognizance becomes matter of record in the Superior Court when first certified there, though no entry of it was made on the docket, or indorsed on the paper.^ § 406. Scire facias. Under St. 1862, c. 322, it was held that scire facias was the remedy prescribed on a recognizance, and that an action on the contract was therefore excluded ; * but under that act, § 12, a scire facias was held not main- tainable unless made returnable at the next term after de- fault,^ though held for civil business only.^ § 407. Pleadings. A declaration on a recognizance was held good, though the facts showing it to have been duly made appeared only in the condition of the recognizance as recited in the pleading." In scire facias a recognizance of A. and B. was set out as that of A. alone ; but it being made jointly and severally, it was held no variance.^ An averment in a dec- laration on a recognizance that it was taken before justices of the Police Court of Boston, " then and there duly qualified to 1 C. V. Baird, 9 Met. 407 (1845). ° C. t/ Brown, 7 Gray, 319 (1856). 2 C. V. Merriam, 9 Allen, 371 (1864). « C. v. Dexter, 11 Gray, 205 (1858). 8 C. V. Cheney, 108 Mass. 33 (1871). ' C. u. Bail, 15 Pick. 193 (1834). • C. v. Thompson, 2 Gray, 82 (1854). 8 C. v. McNeill, 19 Pick. 127 (1837). 324 OF CRIMINAL PKOCEDUEE. [Part IV. take bail in the premises," sufficiently shows it to have been taken at a session for criminal business ; for a ta session for civil business it could not have been taken.^ An allegation that " defendant knowingly received the stolen goods " would have been insufficient but for the words " as more fully ap- pears on the complaint," which set it forth sufficiently.^ The court may allow an amendment of the return of the recogni- zance, showing a different contract from the one set out, after the party's default and an action commenced upon it.^ Where a suit has been commenced on a recognizance to appear to answer to a charge of " arson," and, arson not being a bailable offence, the court had allowed the police justice to file an amended certificate, substituting for " arson " " wilfully burn- ing a shop," and the declaration to be amended accordingly, it was held that though the error was material, and one that would have rendered the recognizance void, the amendment was within the discretion of the court, and so could not be ex- cepted to.* § 408. Evidence. On scire facias against bail, the record of the court, to which the recognizance was returned that the principal had made default, cannot be contradicted by parol evidence.^ The clerk's indorsement on the recognizance, " re- turned and entered of record in said court," is evidence against the sureties.^ The certificate of the clerk of the Superior Court is not the only competent evidence of the filing of the recognizance in that court. ''^ The record is not conclusive to show the recognizance to have been duly taken where the par- ties agree to a statement of facts showing that it was not so taken ; as where it had been taken by the clerk of the Police Court in the absence of the judge.^ § 409. Defences. It is a good defence to a suit on a recog- nizance on appeal that it was not in conformity to law ; though this would not deprive the appellate court of jurisdiction if 1 C. V. Merriam, 7 Allen, 356 (1863). » C. v. Slocam, 14 Gray, 395 (1860). 2 Ibid. 6 Ibid. 8 C. V. Field, 11 Allen, 488 (1866). ' C. v. Merriam, 7 Allen, 356 (1863). * 0. V. Cheney, 108 Mass. 33 (1871). « c. v. Greene, 13 Allen, 251 (1866). Chap. XIII.] EECOGNIZANOES. 325 defendant be personally brought there.^ Where a Police Court sent to the Municipal Court an extended recognizance, supplying froifl their minutes facts omitted, this was held to be no irregularity, and to constitute no defence to the scire faeiasJ^ On exceptions to a finding of the judge, sitting with- out a jury, in favor of the Commonwealth, the objection that the recognizance was void may be taken for the first time in argument before the Supreme Court.^ A scire facias on a recognizance for a criminal appearance is a civil action, and so defendant is entitled to costs against the Commonwealth under Rev. Sts. c. 121, § 22 (Gen. Sts. c. 156, § 17). § 410. Bail. In O. v. Johnson, 3 Gush. 454 (1849), it was held that bail in criminal cases had no right to surren- der their principal after the recognizance was defaulted ; but under St. 1863, c. 59, bail may surrender their principal at any time, before or after a default. 1 C. V. Leighton, 7 Allen, 528 (1863). " C. v. Field, 9 Allen, 581 (1865). 2 C. V. McNeill, 19 Pick. 127 (1837). CHAPTER XIV. EECOEDS AND CEETrFICATES. § 411. Records and their requisites. Where the com- plaint was for keeping a tenement for the unlawful sale of liquors from £f certain day named, and on divers days to the receiving of the complaint, it was held that although the rec- ord did not state the time when the complaint was received, this might be show-n by the jurat.^ A copy of a court record of any court in this State, signed by the clerk and under the seal of the court, is sufficient in any other court of the State without the judge's certificate of clerkship.^ It was held in Turns v. 0. 6 Met. 224 (1843), that there was no pos- itive rule of law requiring the names of the petit jurors to ap- pear on the record ; and that -if the record showed that " the jury was duly returned and sworn," the law implied that they were good and lawful men. Moreover, that the names of the grand jurors need not appear on the record ; which need not state that the grand jury was empanelled and sworn at the trial term ; the court noticing judicially the statute requiring grand jurors in the Common Pleas to serve at successive terms during the year. The record on a complaint tried be- fore a justice of the peace need not state that the appeal was taken to the " next court of criminal jurisdiction," the fact appearing aliunde to have been so ; and a defendant cannot object to his own omission to recognize to appear, being bound to appear at all events." The act establishing the Police Court of Chicopee gave the special justice power to act only 1 C. a.MoIvor, 117 Mass. 118 (1875). " C. v. Snftvan, 11 Gray, 203 (1858). 2 C. V. Phillips, 11 Pick. 28 (1831). Chap. XIV.] EECOEDS. 327 in case of the " absence, sickness, interest, or any other disabil- ity of the standing justice." The complaint in a liquor case ■was signed by the special justice, without showing any cause under the statute for his acting in the matter. It was con- tended in arrest of judgment and in the Supreme Court that, the record not showing this essential fact, there was no juris- diction ; and that though this fact did appear in a certificate at the foot of the warrant, the want of such a statement at the time of receiving the complaint was fatal. But it was held that, assuming that the fact must appear on the record, it did so appear, the complaint and warrant being connected, bear- ing the same date, and the warrant requiring the defendant " to answer to the foregoing complaint this daj made," and the fact being again certified in the record of the case, reciting the proceedings at the hearing on the same day.^ Where the record of the Superior Court stated a conviction at a particu- lar term, " the Hon. T. Russell presiding," this was held suffi- cient to show him to be a justice of that court.^ The record need not show defendant to have been present, except at his arraignment and sentence.^ Where the caption of an indict- ment read, " Found first Monday of , in the year of our Lord one thousand eight hundred and sixty ," charging the offence to have been committed Jan. 1, 1868, and between then and the finding of the indictment, it was held that it was sufficiently shown by the clerk's certificate thereon to have been returned and presented Sept. 11, 1868.* Where a statute directs the penalty to go to the county, if the record state that the court directed the fine " to be disposed of according to law," it is sufficient.^ A record of convic- tion need not state the term to have been one for the transac- tion of criminal business ; as the court will take notice of it judicially;^ but where the terms of a court are directed by law to be held at certain places at stated times, the record must show the place where the term was held, or the omission I C. V. Connell, 9 Allen, 488 (1864). * C. k. Hines, 101 Mass. 33 (1869). ■' Jeffries v. C. 12 Allen, 145 (1866). ^ c. v. Horton, 9 Pick. 206 (1829). ' Ibid. 6 Turns v. C. 6 Met. 224 (1843). 328 OF CRIMINAL PROCEDURE. [Fart IV. would be fatal.i Where the papers of a record from a Police Court had become separated, it was held that the identity of the case to which they belonged might sufficiently appear from internal evidence.^ A mere certificate of the clerk of a court in another State that a judgment of divorce had been entered is not a " rec- ord," and so not admissible in evidence to prove a divorce. Jurisdiction in cases of divorce is a special one, not recognized by the common law. Courts exercising it stand, in this re- spect, on the same footing with those of limited or inferior jurisdiction, and its powers must be shown, and it must ap- pear that they have been strictly pursued.^ § 412. Certifled copies. Under Rev. Sts. c. 138, § 2 (Gen. Sts. c. 173, § 3), the record of conviction transmitted by a justice of the peace must be " certified " to be a true copy ;* but the words " a true copy " apply to all proceedings on the same paper.^ Judgment will not be arrested in a case for the forfeiture of liquors because only certified copies of the papers have been sent up to the Superior Court ; the statute not making any provision on the subject, the jurisdiction is not affected.^ § 413. Errors and erasures. In a case of the seizure of liquors under Gen. Sts. c. 86, § 42, if the original papers show the proper notice to have been issued within twenty- four hours after the seizure, an error in the record stating a later date of the notice is immaterial. The issuing of the notice under c. 86, §§ 46, 54, is merely a ministerial act, and need not be recorded.^ In C. v. McOormack, 7 Allen, 582 (1863), a misrecital of the complaint in the record sent up was held no ground for arrest of judgment, the complaint being sufficient in se. A misrecital of the complaint, or an erroneous judgment upon it, avoids the judgment below, and gives defendant his full rights in the appellate court. 1 C. V. Hogan, 113 Mass. 7 (1873). 2 C. V. Cavey, 97 Mass. 541 (1867). 8 C. V. Blood, 97 Mass. 538 (1867). 4 C. u. Sheehan, 12 Gray, 28 (1858). 6 C. V. Ford, 14 Gray, 399 (1860). « c. V, Intox. Liq. 97 Mass. 600 (1867). ' C. V. Intox. Liq. 4 AUeD, 593 (1862). Chap. XIV.] EECOBDS. 329 Whether or not there has been an erasure in the record is a question of fact determinable by the court.^ § 414. Seal. A copy of a record sent up by a justice of the peace need not bear a seal.^ So as to a record from the Municipal Court on appeal to the Superior Court.^ § 415. Legal effect of records. In a plea in abatement filed in the Superior Court, no evidence is admissible to con- tradict a statement in the record of the Police Court where the complaint had been made, that the complaint had been received and sworn to before the court.* On scire facias against bail, a record of the court to which the recognizance was returned, stating that the principal had made default, cannot be contradicted by parol evidence.^ But where an ofiicer had ofiicially indorsed on a writ that he had arrested the defendant and had him before a magistrate, it was held that it might be shown by parol evidence that the indorse- ment was a mere memorandum ; that no arrest had been in fact made, and that the writ had been handed back to the magistrate for service by a constable ; on the ground that this was no contradiction of a " return ; " that any memoran- dum on a writ before its actual and formal return to the court is not a legal return, and may be amended by the offi- cer at his pleasure.® On a trial for manslaughter, the record of a judgment against defendant for an assault and battery on the deceased is admissible merely to prove the fact of the conviction. It is no evidence of the assault alleged in the in- dictment for manslaughter, unless the identity of the person and of the offence be established by other evidence.^ Where the papers (fertified from the Common Pleas were in due form, the Supreme Court refused to listen to a defendant who produced what purported to be original papers filed in the Common Pleas by the justice of peace, claiming that the justice's judgment (which was on a separate paper) did not 1 C. . Holmes, 119 Mass. 195 (1875); (1873). C. V. Fields, 119 Mass. 105 (1875). ' C. v. Hogan, U Gray, 315 (1858) ; > C. V. Dillane, 11 Gray, 67 (1858). C. v. Burke, 14 Gray, 81 (1859). * C. i>. Carroll, 15 Gray, 412 (1S60). « C. w. Blood, 4 Gray, 31 (1855). Chap. XV.] AS XO PROCEEDINGS BELOW. 339 immaterial. Thus, an error in the swearing of witnesses, or in the form of the conviction and judgment in the court be- low, constitutes no ground for dismissal or arrest of judgment in the appeal court.^ So as to an erroneous refusal to quash ; ^ or an error in the sentence ; ^ or an omission to state that de- fendant had been arraigned;* or a misrecital of the warrant in the record of a district court ; ^ or a misrecital of the com- plaint in the record, provided the complaint transmitted be sufficient in se ; ^ or any misrecital of the proceedings ; '' or that the record shows continuances without showing appearances on the day, or when defendant was recognized to appear ; or that the record does not show that complainant was examined in defendant's presence ; ^ so as to a difference, not substantial, between the description" of the offence in the complaint below and as appearing in the record of conviction.^ Before the jury was empanelled in the court below, defendant moved to quash the warrant as not being under seal, as required by law. The objection was overruled, defendant was convicted, and ap- pealed. In the certified copy of the record transmitted to the appeal court, the copy of the warrant had upon it an impres- sion of the seal of the court, and this was held to be a sufficient showing that the original warrant was under seal.^** On a trial for keeping a liquor nuisance, the prosecution proved a record of defendant's conviction on a plea of guilty of keeping a shop open on the Lord's Day, in which the date of the complaint was stated to be " January 19, 1874." The case came up on exceptions to the Supreme Court ; and de- fendant moved to recommit the papers to the Superior Court, because the date stated in the copy of the record annexed to 1 C. V. Thompson, 2 Allen, 507 " C. v. Bnrke, 121 Mass. 39 (1876). (1861); C. «. Calhane, 108 Mass. 431 « C. v. McCormack, 7 Allen, 532 (1871); C. V. Harvey, 111 Mass. 420 (1863). (1873) ; C. K. Fredericks, 119 Mass. 199 ' C. v. Huard, 121 Mass. 56 (1876). (187.')). 8 c. V. Dillane, 11 Gray, 67 (1858). 2 C. u. Holmes, 119 Mass. 195 » C. o. Malloy, 119 Mass. 347 (1875). (1876). 3 C. V. Tinkham, 14 Gray, 12 (1859). w C. v. Ballon, 112 Mass. 282 (1873). * C. V. Kingman, 15 Gray, 208 (1860). 340 OP CRIMINAL PKOCEDUEE. [Pakt IV. the bill of exceptions was " January 9, 1874 ; " but the motion was refused, the discrepancy being held to be imma- terial.^ § 424. When objeotions too late. Objections merely for- mal, apparent on the complaint and warrant, not specifically assigned in the motion to quash, cannot be set up on appeal.^ After a conviction in a Police Court under St. 1869, c. 415, § 36, for keeping liquors with intent to sell, it is too late to object that the complaint omits to negative the innocent purposes for which they might be kept for sale.^ Under St. 1864, c. 250, § 2, an objection that the offence is not suffi- ciently described cannot be taken on appeal ; * nor that the time of the commission of the ofEence is not alleged, nor that the indictment charges two different offences ; ^ nor a defect in the service of the warrant ; ^ nor that the charge in the complaint was in the alternative ; "^ nor, where a complaint is headed " Middlesex, ss.," an omission of the name of the county after the words " at Framingham ; " * nor, in a com- plaint for the sale of liquor, that the name of the buyer is left blank ; this being substantially as certain as " to a person un- known ; " ^ nor that in a complaint for unlawfully conveying liquors to another person to be illegally sold, the words " from place to place within the Commonwealth " are omitted ; ^^ nor duplicity in a count, if the objection was not made on a motion to quash, or at the trial ; ^^ and even before St. 1864, c. 250, it was held that an objection for duplicity could not be taken in arrest of judgment, or on error." ^^ A misnomer not apparent on the record can be taken advantage of only by a plea in abatement.!^ 1 C. 0. Ayers, U5 Mass. 137 (1874). ' C. v. Emmons, 98 Mass. 6 (1866); 2 C. V. Blanchard, 105 Mass. 173 C.w. Walton, 11 Allen, 238 (1865). (1870) ; C. V. Intox. Liq. 105 Mass. ' Green v. C. Ill Mass. 417 (1873). 176 (1870) ; C. v. Norton, 13 Allen, " Ibid. 550(1866). . 1° C. v. Doherty, 116 Mass. 13(1874). ' C.u.Sheehan, 105 Mass. 174(1870). u C. k. Snow, 116 Mass. 47 (1874). < C. V. Brigham, 108 Mass. 457 ^ C. v. Tuck, 20 Pick. 356 (1838). (1871). " C. V. Fredericks, 119 Mass. 199 ' C. V. Walcott, 110 Mass. 67 (1872). (1875). « C.V.Harvey, HI Mass. 420 (1873). Chap. XV.] WAIVER. — OEETIOEARI. 341 § 425. Waiver. Where the person complained of in a seizure of liquors has not appeared as claimant, and has con- sented on the record to the liquors being destroyed without public notice, his writ of error will be dismissed.^ A motion to quash the complaint on a formal objection cannot be made in the Superior Court unless it was made before the trial justice.^ If a defendant does not insist on having the ques- tion of idem sonans as to the name of the party to whom liquors were alleged to have been sold left to the jury, and it is decided by the court, the Supreme Court cannot revise the decision on exceptions.^ A misnomer is waived by not being pleaded in abatement in the court below, and cannot be pleaded in the appeal court, which sits to try only the issues raised below. Though this might compel defendant to give proof of his identity on a subsequent indictment for the same offence, this he would be obliged to do, even if convicted by his true name.* A defendant can found no objection on any proceeding taken on his own application, for his own benefit. A defendant must be held bound by his agreement, else no privilege could be safely granted him.^ Even before St. 1864, c. 250, it was held that any informality in the complaint or in the warrant, although objected to before the magistrate, was waived, unless renewed at the first opportunity in the Common Pleas on appeal.* But even since that statute, where the complaint alleged the commission of the offence on a day then future, it was quashed in the Supreme Court, though the objection had not been taken before trial, as charging no offence to have been already committed.'^ § 426. Certiorari. Certiorari lay to the Common Pleas in criminal cases carried there by appeal from a justice of the peace ; the proceedings not being according to the course of the common law.^ Where a defendant had pleaded a former 1 Leslie v. C. 107 Mass. 215 (1871). ^ q „_ gholes, 13 Allen, 554 (1866). 2 C. V. Vincent, 108 Mass. 441 « c. „. Dean, 9 Gray, 283 (1857). (1871). 7 c. V. Doyle, 110 Mass. 103 (1872). « C. „. Gill, 14 Gray, 400 (1860). s Clark v. C. 4 Pick. 125 (1826). * C. o. Darcey, 12 Allen, 539 (1866). 342 OF CRIMINAL PEOCEDUKE. [Part IV. conviction in the Municipal Court, with profert of the record, on motion by the prosecution suggesting a diminution of rec- ord, a certiorari was issued to that court to bring it up.^ On certiorari, it will be presumed that the party had notice of the continuances, the record not showing the contrary.^ On a petition for certiorari to quash a conviction, the court will not examine the evidence if the record does not show that its competency was objected to at the trial ; especially when there is a remedy open by statutory appeal.^ Proceedings on information for additional punishment on account of former convictions were held to be according to the course of the common law ; so that a writ of error, and not certiorari, was the proper remedy.* § 427. "Writ of error. The remedy by appeal, in crim- inal cases, does not take away the right to a writ of error.^ In Massachusetts, no writ of error for the government lies in a criminal case.^ Defendants jointly indicted and convicted may join in a writ of error, though sentenced severally.^ A convict brought two writs of error at once ; one on the judg- ment for the oSence, the other on the judgment of additional punishment, founded upon the former one. Though the first judgment was in force when the writ of error was sued out, on the first judgment being reversed, the second one fell with it.* A writ of error lies to a judge of probate in proceedings according to the course of the common law ; ^ it lay also to reverse a judgment on an information for additional punish- ment, such an information being substantially a new and dis- tinct prosecution, rather than a revival or continuance of a former one.^*' In Shepherd v. O. 2 Met. 419 (1841), and in Christian v. 1 C. V. Roby, 12 Pick. 496 (1832). ' Sumner v. C. 3 Cush. 521 (1849). 2 C.U.Moore, 3 Pick. 194 (1825). 8 Hutchinson v. C. 4 Met. 359 = Stratton v. C. 10 Met. 217 (1845). (1842). * Cooke, petitioner. 15 Pick. 234 » Fitzgerald v. C. 5 Allen, 509 (1834). (1862). 6 Ibid. " Wilde v. C. 2 Met. 408 (1841). 8 C. V. Cumraings, 3 Cush. 212 (1849). 1 CuAP. XV.] EXCEPTIONS. — PKBSUMPTIONS. 343 0. 5 Met. 530 (1848), it was held that a judgment in a crim- inal case is entire, and on a writ of error, though erroneous only in part, must be reversed in toto ; that the Supreme Court could not send the case back for a proper judgment to be en- tered in the Common Pleas, nor enter such a judgment as that court ought to have rendered, though the infliction of the sen- tence was not commenced. But by Gen. Sts. c. 146, § 16, the Supreme Court is now empowered, in case of reversal, to ren- der such judgment as should have been rendered, or to remand the case for that purpose to the court below. On writ of error, a judgment upon a verdict upon one count will not be reversed, though no verdict was rendered on an- other count. Such an omission amounts to either a discon- tinuance or an acquittal, or at least a nol. pros, of that count.^ The affirmance of a judgment on a writ of error is a bar to a second writ, except for matters subsequently arising.^ § 428. Exceptions. A judge's statement of the law in his charge is not reversible in the Supreme Court unless the points excepted to were specially made at the time ; in which case the court below might have corrected the erroneous in- struction, or explained or qualified it, or made it more dis- tinct ; 3 and under St. 1832, c. 130, § 5 (Gen. Sts. c. 173, §§ 7 et seq.^, no other questions are presentable than those reserved in the bill of exceptions.* The rulings as to the sufficiency of evidence are not revisable unless all the evidence is reported in the bill of exceptions ; ^ and the question whether the ver- dict should be set aside as against evidence cannot be raised on exceptions.^ The language of the verdict as given in a motion in the bill of exceptions is controlled by the entry of the verdict in the record.'' (See Exceptions, ante, p. 294.) § 429. Presumptions. Complainant in bastardy, an in- fant, had entered her complaint by attorney, but had pleaded by guardian. On certiorari after judgment, it was presumed 1 Edgerton !). C. 5 Allen, 514 (1862). " C. v. Goldstein, 114 Mass. 272 ^ Booth V. C. 7 Met. 285 (1843). (1873). 8 C. 0. Costley, 1 18 Mass. 1 (1875)- « C. v. Morris, 1 Gush. 391 (1848). * C.y. Stephens, 14 Pick. 370 (1833). ' C. v. McGrath, 115 Mass. 150 (1874). 344 OP CRIMIlirAL PROCEDURE. [Past IV. that she was of age, the contrary not appearing ; and it not being inferable from her pleading by a guardian, who might have been appointed for some other cause than her minority.^ In a caBe of a search-warrant for liquors under St. 1869, c. 415, § 44, an adjudication that there is probable cause to believe the complaint to be true is conclusive in the revisory court.^ An indictment contained two counts ; one for burglary in a building, and the other for stealing in the same building on the same day. There was a general verdict of guilty. It was held that the sentence pronounced, whether proper for bur- glary, or for larceny, or for both, could not be reversed ; the revisory court not knowing from the record whether there had been more than one offence committed. But as this was known to the judge below, the sentence was presumed to be according to law. If both the offences, however, had been charged in one and the same count, the larceny would have been merged in the burglary, and as the sentence could have been for the burglary only, if there had been a sentence for larceny, judgment would have been reversed.^ On a trial for embezzlement, evidence of other embezzlements during the same week would be admissible in proof of the intent only when the jury are instructed as to its legal effect. Where such a case came 'before the Supreme Court on the judge's report, it was presumed that, if there had been any such in- struction given, he would have reported it ; and this not ap- pearing, a new trial was granted.* On appeal from a Police Court to the Superior Court the record showed that the case was heard and adjudged on the second Wednesday of the month. Defendant moved in ar- rest of judgment, on the ground that the record did not set forth that the complaint was tried during a criminal term, or at a term of the court held for the transaction of criminal business. But it was held that, as the Police Court was re- quired by law to be held daily for the transaction of criminal 1 C. V. Moore, 3 Pick. 194 (1825). » Crowley v. C. 11 Met. 575 (1846). " C. V Intox. Liq. 103 Mass. 448 - * C. «. Shepard, 1 Allen, 575 (1861). (1869). Chap. XV.] AMENDMENT SENTENCE. 345 business, it would be presumed that the requirement was obeyed. 1 § 430, Record. On a plea in abatement in the Superior Court to a complaint in a Police Court, the Police Court rec- ord, to the efEect that the complaint had been received and sworn to before the court, cannot be contradicted by evidence.^ The language of the verdict as appearing in the bill of excep- tions is controlled by the entry in the record ; ^ and copies duly certified to the Supreme Court from the Common Pleas were held to be not controllable by papers filed there and al- leged to be originals.* § 481. Amendment. The Superior Court may allow a trial justice to transmit amended copies of the record and papers at any time before the trial on appeal ; ^ but where, on appeal from a trial justice, defendant was tried and convicted for the unlawful keeping of liquors on a certified copy of the com- plaint, in which was alleged a sale on a different day from that stated in the original complaint, and the appeal court, after verdict, had allowed the copy to be amended to conform to the original, the verdict was set aside and a new trial was ordered.^ § 432. Sentence. Under Gen. Sts. c. 173, § 5, though de- fendant was only fined in the lower court, on appeal, the sen- tence is not limited, but both fine and imprisonment may be imposed.^ Bvit the appellate court cannot impose a higher penalty than could have been imposed by the one appealed from, though it may have a larger original jurisdiction. The very essence of appellate jurisdiction is to revise a proceeding in another court, and to do what that court might and ought to have done. So, if a Police Court can punish only by fine or imprisonment, the appellate court cannot sentence to both fine and imprisonment.^ (See Sentence, post, p. 348.) I C. ./.Brown, 123 Mass. 410 (1877). » C. v. "Wiggin, 111 Mass. 428 ^ C. D. Hassenger, 105 Mass. 385 (1873). (1870). 6 c.„. Dressel, 108 Mass. 102 (1872). « C. 0. McGrath, 115 Mass. 150 ' Batchelder u. C. 109 Mass. 361 (1874). (1872). * C. V. Thornton, 14 Gray, 43 (1859). s Peeley's case, 12 Cush. 598 (1853). 346 OF CRIMINAL PBOCEDURB. [Past IV. § 433. Special points. In O. v. Berly, 13 Mass. 433 (1816), a judgment brought up on certiorari, consisting of two distinct parts, was affirmed as to one and quashed as to the other. Where additional punishment for repeated con- victions had been wrongfully awarded under St. 1817, the remedy was held to be by writ of error, and not by habeas corpus, from the benefit of which writ convicts were excluded by St. 1784.^ In a case brought up on exceptions from the Common Pleas to the Supreme Court, which refused to take cognizance of them, it was held that the Common Pleas might bring the case forward by entering the continuances and then entering judgment.^ Under Rev. Sts. c. 138, §§ 11-14 (Gen. Sts. c. 173, §§ 7 et seq.), in cases brought up from an inferior court on exceptions, the Supreme Court, after overruling the exceptions, may grant a new trial, or remand the application for one to the court below.^ Scire facias to hear errors being an original writ, the prosecuting attorney was held entitled, under Rev. Sts. c. 90, § 21, to fourteen days' notice before being compellable to act on it.* Under Rev. Sts. c. 86, § 1, and c. 138, § 13 (Gen. Sts. c. 173, §§ 7 et seq."), exceptions are to the next Supreme Court ; so, a recognizance to enter and prosecute them at the court " then in session " was held void.^ Where the judge below overrules objections to the sufficiency of the indictment at the trial, and the case is brought up on exceptions to such ruling, if they are sustained, judgment will be arrested.^ An order refusing to dismiss a a writ of scire facias for want of a certificate of merits under St. 1851, c. 233, § 40, being only interlocutory, exceptions to it could not come up till after final judgment ; ' so as to ex- ceptions to the overruling of a demurrer.^ Where the revisory court is of opinion that a verdict of guilty cannot be rendered on a case reported from the court below under Rev. Sts. c. 138, § 12 (Gen. Sts. c. 173, §§ 7 et seq.), the order is that all 1 Eiley's case, 2 Pick. 172 (1824). » C. o. Harley, 7 Met. 467 (1844). 2 C. 0. Moore, 3 Pick. 194 (1825). « C. v. Collins, 2 Cush. 556 (1848). » C. V. Peck, 1 Met. 428 (1840). f C. v. Stevens, 10 Cush. 483 (1852). « Christian v. C. 5 Met. 334 (1842). 8 c. v. Sallen, 11 Gray, 52 (1858). Chap. XV.] SPECIAL POINTS. 347 proceedings be stayed and that the defendant be discharged.' Where an appeal court had exceeded its jurisdiction by add- ing imprisonment to the sentence imposed by the court or magistrate from whom the appeal was taken, it was held that defendant might be relieved on habeas corpus ; though a writ of error on the judgment would be the ordinary remedy.^ (By Gen. Sts. c. 144, § 2, habeas corpus is denied to convicts.) An indictment remitted by the Supreme Court to the Com- mon Pleas, after disposing of the exceptions, might go to the court then in session ; but if not otherwise directed, it would go to the next term of the Common Pleas for the same county.^ After pleading not guilty, defendant cannot file another plea without leave of the court ; neither can he do this in the ap- peal court.* Under Gen. Sts. c. 173, § 3, a copy of the con- viction and proceedings in the District or Police Court may be properly transmitted to the Superior Court by the clerk, with- out any order being made.^ Where no judgment has been rendered on appeal beyond an order overruling a motion to quash, the proper entry in the Supreme Court is. Appeal dis- missed.® If a jurisdictional defect appear for the first time in the Superior Court, defendant may move there in arrest of judgment ; but not in the Supreme Court ; for the court ap- pealed from might send an amended record to the Superior Court, on which defendant could be tried de novo.'' It was held in C. v. Bundy., 5 Gray, 305 (1855), that the district attorney's fees were not taxable when defendant sucr ceeded on the appeal. 1 C. H. Ordway, 12 Gush. 270 (1853). « C. v. Bray, 117 Mass. 150 (1875). 2 Feeiey's case, 12 Cush. 598 (1853). » C. u. Hanley, 121 Mass. 377 (1876). 8 C. u. Robinson, 1 Gray, 555 (1854). ' C. v. Galligan, 113 Mass. 203 * C. V. Lannaa, 13 AUen, 563 (1866). (1873). CHAPTER XVI. SENTENCE. (Gen. Sts. c. 174 — & 1870, c. 206 — St. 1876, cc. 23, 166— aS. 1877, c. 190.) § 434. When valid. Where a defendant was found guilty on an indictment charging in separate counts adultery with A. on a certain day, and adultery with B. on another day, it was held that the revisory court could not judicially know that but one offence was really charged ; and so the sentence was not reversed, though in excess of what a conviction on either count would have carried. Where several offences are charged in one indictment, a single sentence is legal that does not exceed the sum of several sentences that might be awarded.^ Where one of two counts is bad, the law pre- sumes, after conviction, that the judgment was on the good count.^ Under an indictment for rape, a sentence for adultery is warranted by a verdict that defendant had " carnal knowl- edge," but not against the woman's will ; defendant being a married man.^ Under Gen. Sts. chapters 112, 158, and 171> where an indictment in the usual form charges " murder in the first degree," a plea of guilty authorizes a sentence of death, though not setting out the facts showing it to be mur- der in the first degree under the statute.* A sentence to commence on the expiration of a former one is valid, and will take effect on a termination of the former sentence by a par- don or by a reversal of it, as well as by lapse of time.® A capital sentence need not provide for its execution " at such 1 Booth V. C. 5 Met. 535 (1843). * Green v. C. 12 Allen, 155 (1866) 2 Josslyn V. C. 6 Met. 236 (1843). « Kite v. C. 11 Met. 581 (1846). s C. V. Squires, 97 Mass. 59 (1867). Chap. XVI.] SENTENCE. 349 time as the Executive shall appoint." ^ Fixing a time and place for the execution is no part of the judgment, and there- fore is not the exercise of judicial power by the governor. ^ Gen. Sts. c. 76, § 26, requiring the court, before sentencing a boy to the Reform School, to notify the mayor of the city, or one of the selectmen of the town where the boy resided at the time of his arrest, does not limit the power of the court to sentence. It refers only to a subsequent provision making such city or town liable to pay fifty cents a week for the boy's support. The only effect of the omission to notify is to re- lieve the city or town from this contribution.^ § 435. When invalid. Under Gen. Sts. c. 76, § 21, a judge of probate has no jurisdiction to sentence a boy to a Reform School until his father has had notice to appear as a party to show cause against it.* Under Rev. Sts. c. 139, § 8 (Gen. Sts. c. 174, § 18), requiring the punishment to be partly solitary confinement and partly hard labor, if no solitary confinement be imposed the sentence is erroneous, and reversible by de- fendant, though the error complained of was for his own ben- efit.^ To a charge for receiving certain specified stolen goods defendant pleaded guilty " as to |50 worth of them " without specifying which. It was held that no valid judgment could be rendered on such a plea.^ An appellate court cannot im- pose a higher penalty than could be imposed by the court ap- pealed from, though it may have a larger jurisdiction. The very essence of appellate jurisdiction is to revise the proceed- ings in the court below, and do what that court might and ought to have done. So if a Police Court can punish only by fine or imprisonment, the appeal court cannot sentence to both fine and imprisonment.'' § 436. Extent and nature of punishment. Where a de- fendant has been convicted of larceny " in a building," but the indictment does not sufficiently charge this offence, he I Webster v. C. 5 Cush. 386 (1850). * Fitzgerald v. C. 5 Allen, 509 ^ C. V. Costley, 118 Mass. 1 (1875). (1862). "Fanning v'. C. 120 Mass. 388 ' Stevens «. C. 4 Met. 360 (1842). (18'S)- ' O'Connell v. C. 7 Met. 460 (1844). ' Feeley's case, 12 Cush. 598 (1853). 350 OP CRIMINAL PROCEDUEE. [Pabt IV. can be sentenced only for simple larceny. ^ A sentence of im- prisonment, if the fine and costs are not paid by a certain time, is not a sentence to pay the fine and costs by the time speci- fied, but is a sentence of imprisonment to take effect at the , end of that time if they are not paid.^ . It was held that St. 1830, mitigating the punishment for setting fire to a house where there were no persons lawfully in it, was applicable even where there were persons in the house who were com- pelled by the criminal, through force or fear, to leave it before the house was set on fire. Moreover, that strangers who went in with the mob to save life or property were not lawfully there within the meaning of this clause, which was for the benefit of the criminal. And the fact that some of the inmates of the convent destroyed were in a summer-house unconnected with the building when it was set on fire did not suffice, it was held, to make the offence capital.^ § 437. Term. The aggregate of solitary confinement and hard labor must not exceed the maximum term imposed by law.* Rev. Sts. c. 143, § 19 (Gen. Sts. c. 174, .§ 16), does not authorize a longer sentence in a house of correction than in a county jail.° Under Rev. Sts. c. 126, § 14 (Gen. Sts. c. 161, § 15), larceny of less than flOO in a shop, dwelling-house, &c., if not alleged to have been " in the day time," is punish- able only as " simple larceny," by one year's imprisonment.^ A larceny, with the aggravation, if committed in the day time, is punishable by five years' imprisonment in the state prison ; but if not alleged to have been " in the day time," a sentence of over one year is erroneous.^ Stealing not over f 100 in the night time being punishable by only one year's imprisonment, a sentence of one year and three days' solitary confinement is erroneous.^ Under Rev. Sts. c. 145, § 3 (Gen. Sts. c. 180, § 6), a poor convict, sentenced to imprisonment and payment of fine and costs, is not dischargeable till three months after 1 C. V. Hathaway, 14 Gray, 392 « Wilder «. C. 2 Met. 408 (1841). (1860). « Haggett v. C. 3 Met. 457 (1842). 2 Wilder v. C. 2 Met 408 (1841). 7 Hopkins v. C. 3 Met. 460 (1841). ' C. V. Buzzell, 16 Pick. 154 (1834). s Xully v. C. 4 Met. 357 (1842). * Stevens v. C. 4 Met. 360 (1842). Chap. XVI.] SENTENCE. 351 the expiration of his sentence of imprisonment ; for until then, he is not imprisoned for " fine and costs only." '^ Under Rev. Sts. c. 143, § 49 (Gen. Sts. c. 178, § 46), a convict escaping before the end of one term of imprisonment may be sentenced for the residue of all the terms for which he had been sen- tenced.2 Under St. 1867, c. 301, § 2, where a prisoner is re- manded by the Executive to the state prison for breach of a condition of the pardon, it can be only for so much of his term of imprisonment then remaining unexpired. The time between the conditional pardon and his subsequent arrest to be carried before the governor and council must be taken as part of his term of sentence.^ Under Gen. Sts. c. 168, § 8, an attempt to commit an offence which would be punishable by five years or more in the state prison is punishable by not over five years in the state prison, though also punishable by fine and imprisonment in jail.* § 438. Construction of statutes. A convict under Rev. Sts. c. 47, § 27 (Gen. Sts. c. 88, § 15), as a common seller of liquors, maybe sentenced to a fine and costs and to stand committed till paid. The substitution of ninety days' impris- onment is discretionary, not imperative.^ Under Rev. Sts. c. 143, § 19 (Gen. Sts. c. 174, § 16), the house of correction may be substituted for the state prison, but not for the county jail.^ Under Rev. Sts. c. 126, § 16 (Gen. Sts. c. 161, § 17), stealing from the person, though less than five dollars, is punishable by imprisonment in the state prison.'^ A defendant convicted on three counts, each charging a sale of liquor, under St. 1862, c. 322, § 7, may be sentenced to a fine of f 10 on each count, and to give a bond to the Commonwealth.^ Under Rev. Sts. c. 126, § 17 (Gen. Sts. c. 161, § 18), it was held that the stat- ute in § 18 merely gave to justices of the peace an original con- current jurisdiction with the Common Pleas in cases where 1 Gannon v. Adams, 8 Gray, 395 ^ Harris i^. C. 23 Pick. 280 (1839). (1857). 6 Stevens v. C. 4 Met. 360 (1842). 2 Stevens v. C. 4 Met. 360 (1842). 7 c. u. Nolan, 5 Cush. 288 (1850). 8 West's case. 111 Mass. 443 (1873). 8 Tattle v. C. 2 Gray, 505 (1854). * McLaughlin's case, 107 Mass. 225 (1871). 352 OP CRIMINAL PKOCEDURB. [Part IV. the property stolen was not alleged to be over f 15 in value, and did not deprive that court of the power it had under § 17 to sentence for any larceny of property under $100 in value, though it was not found by the jury that the value of the property was over $15.^ § 439. Several counts. A count for breaking with intent to steal may be joined with a count for stealing the same goods, and on a general verdict of guilty defendant may be sentenced on both counts. But if the breaking and the lar- ceny are charged in the same count, only one penalty can be imposed. Though, by custom, an actual stealing is charged in a count for breaking and entering, this is only a mode of charging an intent to steal.^ Where, however, one count charges burglary in a building, and another count stealing in the same building, on the same day, and there is a general ver- dict of guilty, the appellate court cannot know from the rec- ord whether these were distinct ofEences, and cannot, there- fore, reverse the judgment on the ground that the sentence was properly applicable to a conviction for both burglary and larceny. As the court below must have known whether the conviction was of two distinct ofEences, the sentence imposed will be presumed to be according to law. But when the burglary and the larceny are both charged in one count, the larceny being merged in the burglary, the sentence must be for the burglary only ; and if there be a sentence for larceny also, the judgment will be reversed.^ Where, however, in the case of a general verdict of guilty on a count for burglary containing the usual charge of larceny, the charge of burglary is nol. pressed by the prosecuting attorney, defendant may be sentenced for the larceny.* § 440. Fines and penalties. A statute creating an offence had made it prosecutable " by bill, indictment, or informa- tion ; " and two thirds of the penalty to go to the Common- wealth and one third to the informer. It was held, neverthe- 1 C. V. McKenney, 9 Gray, 114 » Crowley v. C. U Met. 575 (1846). (1857). * C. c/. Tuck, 20 Pick. 356 (1838); ' Josslyn V. C. 6 Met. 236 (1843). Jennings v. C. 105 Mass. 586 (1870). Chap. XVI.] SENTENCE. 353 less, that an information by the attorney general ex officio, claiming the whole penalty for the Commonwealth, was valid, and that as the judgment followed the information, there was no error.^ Where the statute directs the penalty to go to the county, it is sufficient if the record show it to be " disposed of according to law." 2 Since St. 1849, c. 211, § 7 (Gen. Sts. c. 26, § 50), fines and penalties incurred under ordinances re- lating to the public health are recoverable only by complaint in the name of the town treasurer.^ § 441. Miscellaneous points. The words in a capital sentence, " thence to the place of execution," do not deprive the officer of discretionary power to execute it within the walls of the prison, under Rev. Sts. c. 139, § 13 (Gen. Sts. c. 174, § 26).* Where a defendant is tried on several com- plaints for liquor sales, and the evidence is sufficient to prove one sale only, he may be sentenced on that, and have a new trial on the others.^ Under Rev. Sts. c. 126, § 25 (Gen. Sts. c. 161, § 31), the right of the owner of stolen goods to resti- tution is only of the identical property stolen, and not of its proceeds.^ It was held that an appeal lay from a justice of the peace to the court of Common Pleas, even where the sentence was illegal and void.'^ After conviction, judgment may be rendered on any count that is sufficient,^ A judge of the Superior Court may revise and increase a sentence during the same term of the court, if the one originally pro- nounced has not gone into operation. A judgment is not final till the end of the term, and may in the mean time be altered or amended.^ But where a defendant, on a general verdict of guilty, has been sentenced upon the first two counts of the indictment, and has been imprisoned under the sen- tence, he cannot be brought up for sentence at a subsequent term on another count of the same indictment. Even if the first two counts were erroneous, the judgment upon them was 1 Howard v. C. 13 Mass. 221 (1816). ^ c. „. Boudrie, 4 Gray, 418 (1855). ~ " C. V. Horton, 9 Pick. 206 (1829). ' C. 1?. O'Neii, 6 Gray, 343 (1856). 8 C. V. Fahey, 5 Cush. 408 (1850). » C. ,.. Howe, 13 Gray, 26 (1859). * Webster y. C. 5 Cush. 386 (1850). ' C. u, Weymouth, 2 Allen, 144 ° C. V. Kemby, 2 Gray, 508 (1854). (1861). 354 OP CRIMINAL PEOCEDUEB. [Part IV. not void when rendered.^ It seems that in a non-capital case, the allocutus, or demand of the defendant if he has anything to say why judgment should not be pronounced against him, is not necessary. At all events, the omission is no ground of error where the record shows that he moved for a new trial, or in arrest of judgment.^ Though a sentenced prisoner has sued out a writ of error to the United States Circuit Court under the Act of 1789, he will not be released on habeas cor- pus if the record shows that no federal question was decided ; in which case it will be deemed that the writ of error was issued improvidently, and that therefore the United States court had no jurisdiction .^ On overruling a demurrer to an indictment for a misdemeanor, the Superior Court may order judgment for the Commonwealth though defendant has duly excepted to the ruling.* § 442. Additional Punishment. St. 1853, c. 375, re- pealed all laws then in force for additional sentences " on ac- count of any previous sentence to the state prison." But the following provisions in the General Statutes of 1860 impose additional punishment, or a higher grade of punishment, where there have been previous convictions of certain offences : c. 86, § 32; c. 161, §§ 22, 47; c. 162, §§ 7, 16; c. 165, §§ 26, 34; c. 167, § 4. Under Sts. 1817 and 1827, imposing an addi- tional term of imprisonment where defendant had been pre- viously punished by " any term of years," it was held that " any term of years " meant two years, at least, and conse- quently did not apply to a prior conviction of an offence pun- ishable by only one year's imprisonment ; ^ but the words " term of years " in St. 1827, c. 118, was held to apply to a convict who had been sentenced for life.^ Rev. Sts. c. 126, § 19 (Gen. Sts. c. 161, § 22), imposing additional punish- ment on one who had been convicted three times of larceny 1 C.U.Foster, 122 Mass. 317 (1877). ^ Ex parte Seymour, U Pick. 40 2 Jeffries v. C. 12 Allen, 14.5 (1866). (1833) ; Ex parte Dick, Ibid. 86 ; Ex 8 Nauer o. Thomas, 13 Allen, 572 ;)artc White, Ibid. 90; £ar parte Stevens, (1866). Ibid. 94. 4 C. V. Gloucester, 110 Mass. 491 « C. f. Evans, 16 Pick. 448 (1835). (1872). Chap. XVI.] ADDITIONAL PUNISHMENT. 355 as " a notorious thief," applies to aggravated as well as to simple larcenies.! A convict who has been sentenced to ad- ditional punishment for a second offence is liable also to additional punishment for a third.^ Rev. Sts. c. 139, § 8 (Gen. Sts. c. 174, § 18), imposing solitary confinement, does not apply to a sentence of additional punishment on informa- tion ; the statute being satisfied by the infliction of solitary confinement on the original conviction.^ St. 1827, c. 118, subjected to additional punishment one who had been twice convicted and sentenced to confinement. By St. 1832, c. 73, the additional punishment could be imposed only when the convict had been twice " discharged " from confinement ; but this act was repealed by St. 1833, c. 85. In 1835, defendant, ■ who was a convict in the state prison, was sentenced on in- formation to additional punishment under the Act of 1827, he having been twice convicted and sentenced while that act was in force, and before the passage of the Act of 1832. It was held that the sentence to additional punishment was valid ; that the Act of 1832 operated only to suspend, while it was in force, the liability to additional punishment under the Act of 1827, which was revived by the repeal of the Act of 1832.* This doctrine was afterwards affirmed in O. v. Mott, 21 Pick. 492 (1839). In this case the offence had been committed before the Act of 1832, but the conviction was had after the Act of 1833. It was held that defendant was liable to additional punishment under that clause of the Act of 1827, c. 118, § 19, which imposed it after one sentence to confine- ment at hard labor for a term of years in the state prison of another State. A sentence as " a notorious thief," although based upon three distinct larcenies, neither of which would carry a sen- tence for a longer term than one year, is nevertheless a sen- tence, being for a term of years, subjecting the convict to additional punishment under the statute.^ 1 C. V. Bosworth, 22 Pick. 1 (1839). * C. v. Getchell, 16 Pick. 452 (1835). 2 Plumbly w. C. 2Met. 413 (1841). ^ Ex parte Wliite, 14 Pick. 90 ' Stevens r. C. 8 Met. 360 (1844); (1833). Bump V. C. 8 Met. 533. 356 OF CRIMINAL PBOCEDUKE. [Paet IV. § 443. When sentence valid. On an information for additional punishment the validity of former convictions can- not be questioned. They must be held valid until reversed on error.i The omission to impose additional punishment on the original conviction does not invalidate the sentence upon it, though the prior convictions were made known to the court by the indictment ; the direct penalty and the additional pun- ishment being separate and distinct in their nature.^ But where the indictment alleges a former conviction as aggravation, requiring additional punishment, and no evidence was given of it on the trial, a general verdict of guilty is not sustainable. The plea of " not guilty " had put it in issue, and a new trial will be granted.^ The object of provisions for additional punishment is to deter from a repetition of the offence ; therefore a charge of a previous conviction of the same offence is not supported, unless it be shown that the first conviction was of an offence committed before the second offence was committed.* Under St. 1855, c. 215, § 15, there can be no increase of punishment for a second offence, unless the prior conviction be charged in the indictment or com- plaint, and proved ; and the previous records of the court are insufficient for this purpose, though showing a previous con- viction at the same term.^ Additional punishment cannot be imposed on conviction on a second count on the ground of a prior conviction of the first count in the same indictment. The law requires the prior conviction to be averred in the indictment, and this cannot be done before the case has been tried.^ Under Rev. Sts. c. 126, § 19 (Gen. Sts. c. 161, § 22), in case of three convictions of larceny at the same term, defendant must be sentenced under a consolidated judg- ment " as a notorious thief." Separate sentences would be erroneous.^ But a defendant convicted on two indictments at the same term, under Rev. Sts. c. 127 § 16 (Gen. Sts. 1 Wilde V. C. 2 Met. 408 (1841). « Garvey v. C. 8 Gray, 382 (1857). ' Phillips V. C. 3 Met. 588 (1842). 6 Tattle v. C. 2 Gray, 505 (1854). » C. V. Briggs, 5 Pick. 429 (1827). ' Haggett v. C. 3 Met. 457 (1842). * C. V. Daley, 4 Gray, 209 (1855). Chap. XVI.] ADDITIONAL PUNISHMENT. 357 c. 162, § 15), of having less than ten pieces of counterfeit coin with intent to pass them, and also on a third indictment for having ten pieces or more with intent, &c., under § 15 (Gen. Sts. § 14), cannot be adjudged a " common utterer of counter- feit coin," and have a single sentence as such under § 17 (Gen. Sts. § 16) ; for § 16 (Gen. Sts. § 14) describes a more aggravated offence, requiring a separate conviction.^ A conviction of larceny on an indictment in three counts, all alleging the commission of the offence on the same day, but stating three different owners of the property stolen, is not a conviction of three distinct larcenies under Rev. Sts. c. 126, § 19 (Gen. Sts. c. 161, § 22), and does not require a single sentence as a " common thief," where there is nothing on the record to indicate that more than one offence was com- mitted.2 § 444. Defendant's remedy. A writ of error lies to re- verse a judgment on an information for additional punish- ment ; such an information being substantially a new and dis- tinct prosecution, rather than the revival or continuance of an old one.^ The proceeding being according to the common law, certiorari is not the proper remedy ; * nor habeas corpus, the right to this writ being denied to convicts. (St. 1784 ; Rev. Sts. c. Ill, §§1,2; Gen. Sts. c. 144, § 2.) ^ Yet, although the writ cannot be claimed as of right, it is within the discre- tion of the court to grant it in a proper case.' Where a con- vict brings two writs of error at once, — one on the judgment for the offence, and the other on the judgment on an informa- tion which sets forth the original judgment as one of the grounds for additional punishment, — on the first judgment being reversed, the second for additional punishment falls with it.'^ Rev. Sts. c. 86, § 10, gave an appeal to the Supreme Court from the Municipal Court of Boston in cases where the offence was punishable by more than five years in the state 1 Murray v. C. 13 Met. 514 (1847). ^ Riley's case, 2 Pick. 172 (1824) ; 2 Stevens v. C. 4 Met. 360 (1842). Belgard v. Morse, 2 Gray, 406 (1854). 8 Wilde V. C. 2 Met. 408 (1841). e Feeley's case, 12 Cash. 598 (1853). * Cooke, petitioner, 15 Pick. 234 ' Hutchinson u. C. 4 Met. 359 (1834). (1842). 358 OF CRIMINAL PKOCEDTJBB. [Part IV. prison. Underth is statute it was held that one convicted of three larcenies, and so liable to additional punishment as " a notorious thief," had the right of appeal from a sentence im- posing such punishment ; on the ground that the effect of the statute was " to consolidate the three convictions and to ren- der one judgment upon them, as upon one substantive of- fence." 1 § 445. Special points. Under St. 1817 it was held that the information for additional punishment must be filed be- fore the term of the convict's sentence expired ; and that the day he was committed to prison must be counted as part of his term.2 When the previous convictions appear in the in- dictment and are found by the verdict, the law presumes the additional punishment to have been included in the sentence. Therefore a subsequent information (which is only to inform the court of what it does not know) for additional punishment does not lie in such a case ; ^ even if it distinctly appeared that the court did not mean to include the additional punish- ment in its sentence. For this would constitute merely an error of judgment and not a want of jurisdiction in the case.* Being twice convicted, whether at the same term or at differ- ent terms, brings the convict within the express provision of the statute.^ The information need not set out the previous convictions in extenso, but only enough to identify them and the offence charged and the sentences, so as to show that the case comes within the provision. But if, instead of averring the convictions directly, it only recite a former information in which the convictions were averred, the defect would be, per- haps, fatal.^ In overruling a demurrer to an information for additional punishment, respondeat ouster is not necessarily the judgment ; which may be final, except in a case of felony.^ 1 C. v. Tuck, 20 Pick. 356 (1838). ^ q_ „. Phillips, l] Pick. 28 (1831). 2 C. d. Keniston, 5 Pick. 420 (1827). 6 -Wilde v. C. 2 Met. 408 (1841). « C. V. Phillips, 11 Pick. 28 (1831). ' Evans v. C. 3 Met. 453 (1842). • Plumbly V. C. 2 Met. 413 (1841). CHAPTER XVII. TRIAL. Gen. Sts. cc. 113, 115, 158 ; c. 170, § 31 ; c. 172 — St. 1870, c. 290 — St. 1872, cc. 232, 314.) § 446. Powers and duties of the judge. The proceedings on all preliminary questions, such as the admissibility of con- fessions in evidence, as also the allowance or denial to either party of the right to cross-examine, are in the discretion of the court, from which there is no appeal.^ § 447. His opinion as to weight of evidence. It was held in G. v. OMld, 10 Pick. 252 (1830), that a judge may express his opinion to the jury as to the weight of evidence. Gen. Sts. c. 115, § 5, now provides that courts " shall not charge juries with respect to matters of fact, but may state the testimony and the law." In reference to this provision, it was observed by the court in Burant v. Burt, 98 Mass. 161 (1867), that if the judge may "state the testimony," he can hardly do so without calling the attention of the jury to the degree of weight and importance to be attached to particular facts proved or admitted. However" this may be, it is settled that, notwithstanding the statute, the court may charge the jury as to the weight of an entire class of testimony, that of accomplices, for instance ; leaving to defendant the right to except if the judge charge that certain evidence corroborates an accomplice when legally it does not.^ But the sta'tute pro- hibits the judge from expressing any opinion as to the credi- bility of witnesses ; ^ and where, defendant's counsel having reflected on witnesses for the prosecution as " policemen," the 1 C. 17. Morrell, 99 Mass. 542 (1868). ' C. v. Barry, 9 Allen, 276 (1864). 2 C. V. Larrabee, 99 Mass. 413 (1868). 360 OF CRIMINAL PROCEDTJEE. [Part IV. judge told the jury they had testified with apparent candor and intelligence, a new trial was granted, on the ground that the jud^e had gone out of his sphere.^ On a trial for larceny, the judge instructed the jury that the evidence was suflicient to justify them in finding the' ownership of the property to have been proved as alleged. It was contended for the defence that this instruction was in violation of Gen. Sts. c. 115, § 5, forbidding any expression of opinion by the judge as to matters of fact ; but held, on exceptions, that such an instruction cannot be so treated by a party when given in response to his own request for a con- trary ruling, any more than a ruling as to the admissibility of evidence.^ § 448. Law and fact. It is the duty of the jury in crim- inal as well as in civil cases to receive the law from the court'; although, under their power to render a general verdict, they are not amenable to punishment for disregarding it.^ In C. V. Porter, 10 Met. 263 (1845), it was held that, though the jury have no right to decide the law, a defendant's counsel has nevertheless the right, in Massachusetts, to argue the law of the case to the jury under the superintendence of the court. (It is not easy to understand how there can exist a legal right to argue a question to a tribunal that has no legal power to decide it. In this case the verdict was set aside because defendant's counsel was not allowed to argue the law to the jury ; yet, if the jury had paid the slightest regard to his argument they would have violated their sworn duty.) In C V. Anthes, 5 Gray, 185 (1855), the court was equally di- vided on the question whether the Act of 1855 conferred on juries the right to decide the law in opposition to the instruc- tions of the court ; but it was held by a majority of the court that if it did, the act was unconstitutional. § 449. Instructions to jury. A judge is not bound to in- struct on a case purely hypothetical ; as, for instance, that if 1 C. «. Barry, 9 Allen, 276 (1864). s C. v. Porter, 10 Met. 263 (1845). " C. u. Brigham, 123 Mass. 248 (1877). Chap. XVn.] TRIAL. — EIGHTS OF PROSECUTION. 361 the proceedings be against the common law there can be no verdict ; ^ or to adopt a hypothetical form of instruction prayed ; but may state the legal proposition in direct terms.'-* Neither is he bound to give as instruction a true proposition if he deem it to be inapplicable to the evidence in the case. As where, in a trial for the keeping and sale of liquors, the judge refused to instruct the jury that defendant could not be con- victed without proof of the keeping for sale ; the same evi- dence that tended to prove sales in a tenement tending also to prove that the liquors were kept in the same tenement.^ Neither has a party a right to an instruction based upon one or more facts, when there are other facts in evidence which may essentially control or modify them.* The jury may be instructed that a juryman may properly doubt his own judg- ment when diifering from that of the majority, and so be led to reexamine his opinion.^ It is no ground for a new trial that the judge, on the jury's return for instructions, charged them on points as to which no instruction had been asked.^ On a trial for an assault and battery, certain facts had been pi'oved in defence ; the jury were instructed that these facts "were no justification of the offence." This instruction was held erroneous. The facts should have been submitted to the jury, accompanied with instructions as to what would be and what would not be justification.'^ § 450. Rights of prosecution. On the trial of an indict- ment with a count for a nuisance under Gen. Sts. c. 87, § 6, and another count for keeping a disorderly house, the prose- cuting attorney is not compellable to elect on which he will proceed ; ^ and generally, he is not compellable to state on which counts he relies. If it were otherwise, the very object of different counts might be frustrated; as the prosecuting attorney cannot certainly know which of them will be sus- 1 C. u. Rock, 10 Gray, 4 (1857). « C. o. Snelling, 15 Pick. 321 (1834). 2 C. V. Foster, 114 Mass. 311 (1873). ' C. v. Goodwin, 3 Gush. 154 (1849). ' Cm. Aaron, 114 Mass. 255 (1873). ^ C. v. Davenport, 2 Allen, 299 * C. ■;. Carroll, 122 Mass. 16 (1877). (1861). 5 C. V. Tuey, 8 Gush. 1 (1851) ; C. v. Whalen, 16 Gray, 25 (1860). 362 OP CRIMINAL PEOCEDUEE. [Paet IV. tained by the evidence.^ After the jury has disagreed on two counts on which defendant had been tried, the prosecution may put him on trial on a third count of the indictment before the same jury and at the same term.^ § 451. Rights of defendant. It was held in 0. v. Phillips, 16 Mass. 423 (1820), that an accessory in a capital case could not be tried without his own consent, if the principal had died without conviction. But under Gen. Sts. c. 168, §§ 4, 7, an accessory to a felony, before or after the fact, may be tried whether the principal felon has been previously convicted or not. When the record shows that defendant was present on his arraignment and at his sentence, it need not appear that he was present at the verdict or at any other of the proceed- ings ; ^ and when defendant is in custody he is not entitled to be present on a motion on his behalf for a new trial, or on the decision of such a motion. When not in custody, the motion will not be heard in his absence ; but simply because, in that case, he has no right to be heard, not being under the con- trol of the court, so that he may be committed if the motion should be denied.* It seems that in a non-capital case an allocutus, or demand of defendant if he has anything to say why judgment should not be pronounced against him, is not essential. At all events, its omission is no ground of error if the record shows that he moved for a new trial or in arrest of judgment.^ In a capital case, defendant is entitled to be furnished with a list of the witnesses examined in his case be- fore the grand jury ; ^ but in a case not capital, he has no right to examine the record of the list of all the witnesses before the grand jury at the same term ; he having received from the prosecuting attorney a list of all the witnesses ex- amined in his own particular case.^ But even in a capital case he is not entitled to a list of those to be examined at the 1 C. V. Slote, 11 Gray, 60 (1858); C. * Jeffries v. C. 12 Allen, 145 (1866). V. Edds, 14 Gray, 406 (1860). ^ C. v. Knapp, 9 Pick. 496 (1830) ; 2 C. V. Burke, 16 Gray, 32 (1860). C. v. Locke, 14 Pick. 485 (1833). 8 Jeffries v. C. 12 Allen, 145 (1866). ' C. v. Daley, 4 Gray, 209 (1855). * C. 0. Costello, 121 Mass. 371 (1876). Chap. XVII.] TRIAL. — BIGHTS OF COUNSEL. 363 trial. ^ After conyiction, defendant is not entitled to a new trial on the ground that a legal juror had been taken from the panel, if he did not object at the time ; ^ and defendant may bind himself by an agreement that a juror may be with- drawn.2 Defendant cannot avail himself of the fact that the prosecuting attorney was permitted to indulge in an improper and irrelevant course of argument to the jury, unless it be shown that the jury was not instructed what weight to give to it.* So, where the prosecuting attorney in his closing ar- gument dwelt upon the fact, not in evidence, that defendant had been before convicted of the same offence, it was held to be no ground for exception ; the court having by special in- structions guarded the jury from being influenced by the im- proper allusion.^ But where the prosecuting attorney com- mented on the fact of defendant's not having volunteered to take the stand as a witness, though in reply to reasons alleged by defendant's counsel, the verdict was set aside.^ Defend- ant is not entitled to have the jury polled, even iji a capital case.'^ § 452. Rights of counsel. Whether defendants jointly in- dicted are each entitled to separate counsel or not, the objec- tion is not open if it was not taken at the trial.^ Semhle, but two counsel can be allowed to appear for the prosecution.^ The prosecuting attorney may be permitted to associate other counsel with him, but the associate counsel can exercise no control in the case j^" and counsel representing the prosecut- ing attorney as his substitute cannot be allowed to act if he is employed in a civil case in which the same facts are involved.^^ The court may rightfully refuse to permit counsel to read, in argument, decisions in another State made under a different Constitution and different statutes ; ^^ and it is no ground of 1 C.v. Walton, 17 Pick. 403 (1835). ' C. ;;. Roby, 12 Pick. 496 (1832) ; C. 2 C. V. Stowell, 9 Met. 572 (1845). „. Costley, 118 Mass. 1 (1875). 8 C. u. Dailey, 12 Cush. 80 (1S53). * C. v. Powers, 109 Mass. 3.W (1872). * C. u. Byce, 8 Gray, 461 (1857). ^ C. o. Knapp, 10 Pick. 477 (1830). * C.v. Cunningham, 104 Mass. 545 i» C. ■/. Williams, 2 Cush. 582(1848) ; (1870). C.v. Scott, 123 Mass. 222 (1877). « C. V. Scott, 123 Mass. 239 (1877). u C. v. Gibbs, 4 Gray, 146 (1855). " C. V. Murphy, 10 Gray, 1 (1857). 364 OP CEIMINAL PROCEDURE. [Part IV. exception that defendant's counsel was not allowed to read the whole of a statute, the unconstitutionality of which he was arguing to the jury.^ In a joint trial of A. and B., B.'s coun- sel was called as a witness by the counsel for A. It was held that he was not compellable to say whether or not an ar- rangement had been made with the prosecuting attorney un- der which B. was not to be sentenced, but discharged; on the ground that B., not having testified or proposed to testify, the fact was not material.^ § 453. Separate trials. The allowance of separate trials is wholly within the discretion of the judge.^ It is no ground of exception to the refusal of separate trials that some of the defendants would be thus prevented from using certain testi- mony which would be admissible if they were tried sepa- rately.* Where the confession proposed to be offered of one of two defendants jointly indicted might prejudice the jury against the other, the latter is entitled to a new trial.^ Where two defendants were jointly indicted, separate trials were demanded on the ground that one defendant might wish to reject a juror whom the other defendant wished to retain. But it was held that the several rights of challenge belonging to the defenda;nts constituted no ground for severing the trial ; that a defendant's right is simply that of refusing to be tried by certain jurors, not that of being tried by such jurors as he likes. ^ It is also within the judge's discretion to refuse a separate trial on each count, and no exception lies to his de- cision.^ § 454. Special points. The jury cannot be asked before being empanelled their opinion as to the credibility of wit- nesses.^ St. 1863, c. 88, providing that when a criminal case is " on trial " at the end of a term, it may be continued by 1 C. V. Austin, 7 Gray, 51 (1856). 6 c. v. James, 99 Mass. 438 (1868). 2 C. V. Thompson, 108 Mass. 461 6 n,id. (1871). 7 c. u. McClusky, 123 Mass. 401 8 C. o. Hills, 10 Cush. 530 (1852). (1877). * 0. V. Thompson, 108 Mass. 461 8 c. v. Porter, 4 Gray, 23 (1855). (1871); C. «. Robinson, 1 Gray, 555 (1854). Chap. XVIL] TRIAL. 365 the court till the trial is concluded, does not apply where the trial was suspended two days before the end of the term, and was not then therefore actually on trial.^ Of two de- fendants tried jointly for larceny, one was acquitted ; as to the other the jury, disagreed. It was held proper to discharge the jury, as also the defendant acquitted, and to continue the in- dictment as to the other.^ In C. V. Knapp, 9 Pick. 496 (1830), the jury, at their own request, and at the wish of the counsel on both sides, and of defendant, were allowed to view the place of the murder in connection with plans submitted ; but no one was allowed to talk with them during the view. In 0. V. Purchase, 2 Pick. 521 (1824), it was held that if the jury disagree in a capital case, they may be discharged, and the defendant held for trial before another jury. As to the objection of " twice put in jeopardy of life or limb," it was said that this was one of the accidents admitted to be ex- ceptions to the general rule, in order to prevent a failure of justice. 1 C. V. MacLellan, 121 Mass. 31 ^ c. „, 'Wood, 12 Mass. 313 (1815). (1876). CHAPTER XVIII. VEKDICT. {Gen. Sts. c. 172.) § 455. Making up verdict. In C. v. Knapp, 10 Pick. 477 (18303, it was held that the jury had the power, but not the right, to determine the law in either civil or criminal cases ; and before St. 1855 (Gen. Sts. c. 172, § 15), it was held to be the duty of the jury, in criminal as well as in civil cases, to receive the law from the court ; although, under their power to render a general verdict, they had the power to dis- regard it without being amenable to punishment.^ As to whether, under that statute; the jury have the right to decide the law contrary to the instruction of the court, in 0. v. An- thes, 5 Gray, 185 (1855), the court was equally divided ; but it was held by the majority that, if such is the meaning of the statute, it is unconstitutional. In 0. v. Lawrence, 9 Gray, 133 (1857), it was held that the jury might decide upon such knowledge of the law as had been previously ac- quired by them all ; but not upon such knowledge as had been acquired by part of them only; and that they were bound to consider the instructions of the court as evidence, at least, of the law. In 0. v. Moek, 10 Gray, 4 (1857), it was said that since St. 1855, as well as before that statute, the jury were governed by the instructions of the court as to the law ; and finally, in O. v. Anthes, 12 Gray, 29 (1858), it was held nemine dissentiente that the jury are bound to take the law from the court. The fact that the evidence proved de- fendant to have been guilty of a higher offence than the one 1 C. V. Porter, 10 Met. 263 (1845). Chap. XVIII.] VEEDIOT, WHEN VALID. 367 charged cannot operate against a conviction.^ Jurymen may rightly be instructed to doubt their judgment when differing from the majority* and so be led to reexamine their opinion.^ § 456. When valid generally. Rev. Sts. c. 127, § 15 (Gen. Sts. c. 162, § 14), punishes the having in possession more than ten pieces of counterfeit coin with intent, &c. ; § 16 (Gen. Sts. § 15), the having of less than ten. Where the indictment charged the having of one hundred pieces in possession, and the jury found the number to be only four, it was held a good conviction under § 16. It is enough if the proof shows a substantive offence to have been committed.^ Where the indictment contains a count for larceny at com- mon law, and another count for receiving the same goods, if the larceny count fails, defendant cannot be convicted under the other count.^ A single act cannot be split up into sev- eral offences because of its injuring several parties. So, where the first count charged a burning to defraud a certain insur- ance company, and the second count the same burning to de- fraud another insurance company, it was held that the de- fendant could not be convicted under both counts. It was said that this was unlike the case of a thief charged with several larcenies, where the packages stolen belonged to dif- ferent owners ; but was more like the case of the larceny of a single article owned by two or more jointly.^ Where an in- dictment contained two counts : (1.) Keeping a house of ill- fame, illegal gaming, and keeping liquors for sale ; (2.) Gam- ing and the sale of liquors, covering part of the same period ; it was held that the prosecution might give evidence under either count, and that if but one offence was proved the jury might apply it to either count, and acquit of one count and convict of the other.^ Where there are several counts, set- ting out the offence in different modes, a general verdict of guilty will be deemed to be upon that count to which the evi- 1 C. V. Walker, 108 Mass. 309 4 c. „, King, 9 Cush. 284 (1852). (1871). 5 c. V. Goldstein, 114 Mass. 272 2 C. «. Tuey,. 8 Cush. I (1851); C. (1873). V. Whalen, 16 Giay, 25 (1860). e Q. v. Edds, 14 Gray, 406 (1860). ' C. V. Griffin, 21 Pick. 523 (1839). 368 OP CKIMINAL PROCEDURE. [Paet IV. dence was applicable. But whete the verdict is rendered upon each of several counts, setting forth different facts, and supported by different evidence, the biU of exceptions show- ing them to be all for one offence, the verdict will be set aside ; and the defect will not be curable by a nol. pros. ; it not being known which count was proved.-' Where one of two counts is bad, after conviction the law presumes the verdict to have been on the good count.^ Where assault and battery and an assault with intent to ravish are both charged in the same count, the jury may render a general verdict of guiltJ^■' Where an indictment for murder consists of several counts stating its commission in different modes, the jury may find a general verdict of guilty, as they may not be able to decide which was the mode adopted ; * and a general verdict is al- ways allowable in the case of several counts, all good, differ- ■ ing only as to the mode of committing the offence charged.* Where the charge is of larceny of property over $100 in value, the verdict must find the value, as the punishment is, under the statute, dependent upon it.^ A complaint for an as- sault was filed September 2 ; and though complainant tes- tified that the assault was made on the second Monday in September, the verdict was sustained ; for notwithstanding his testimony, the jury must have found the assault to have been in fact committed before the complaint was filed. ^ A common law indictment for murder will support a ver- dict of murder in the first degree under St. 1858, c. 154 (Gen. Sts. c. 160, § 1).8 § 457. Verdict varying from, the charge in the indict- ment. In 0. V. Rohy, 12 Pick. 490 (1832), it was held that on an indictment for a felony, defendant could not be convicted of a misdemeanor. But now, under Gen. Sts. c. 1 C. V. Ktchburg R. R. Co. 120 Mass. ^ Ibid. 372 (1876). « C. V. McKenney, 9 Gray, 114 2 Josslyn V. C. 6 Met. 2.36 (1843). (1857). 3 C. V. Thompson, U6 Mass. 346 ' C. v. Bush, 112 Mass. 280 (1873). (1874). ' C. V. Desmarteau, 16 Gray, 1 * C. V. Desmarteau, 16 Gray, 1 (1860). (1860). Chap. XVIII.] VERDICT, WHEN VALID. 369 172, § 16 (Rev. Sts. c. 137, § 11), a defendant indicted for a felony and acquitted by the verdict of part of the offence charged and convicted of the residue may be adjudged guilty of the offence appearing to be substantially charged by the residue of the indictment, and sentenced accordingly. Under this statute one indicted for rape, or for manslaughter, may be convicted of an assault and battery ; ^ and a defendant in- dicted for a rape on his daughter may be convicted of incest.^ So one indicted for an assault with intent to murder may be convicted of a simple assault, without felonious intent.'' So one indicted for an assault with intent to maim may be con- victed of an assault without the intent alleged.* On a charge of stealing $367, the verdict may be " guilty of stealing $317, and not guilty as to residue." ^ Where defendant is convicted on an indictment for malicious mischief to personal property, but the jury find the damage to be under fl5, the conviction is good for the lesser penalty imposed in such case by the statute.^ " Guilty of taking $48" is a sufficient verdict on a charge of stealing property of the value of $150.'^ Where the indictment charged larceny in a building in Chelsea, but it was proved that the building was in Boston, it was held that there could be no conviction of larceny " in a building," but of simple larceny only, which is not local in its nature.^ One may be convicted on a charge of " acts with intent to obstruct a railroad," though the evidence prove an actual obstruction. A defendant cannot complain of being found guilty of a lesser offence than the one proved ; as where one is convicted of manslaughter, though the facts in evidence proved murder.^ Where several are jointly tried for murder, some may be con- victed of manslaughter and others of an assault.^" Where, before trial on an indictment for rape, the prosecuting attor- 1 C. «. Drum, 19 Pick. 479 (1837). ' C. w. O'Connell, 12 Allen, 451 2 C. V. Goodhue, 2 Met. 193 (1840). (1866). » C. u. Lang, 10 Gray, 11 (1857). » c. „_ Lavery, 101 Mass. 207 (1869j. * C. V. McGrath, 115 Mass. 150 ^ C. u. Bakeman, 105 Mass. 53 (1874). (1870). 6 C.i-. Duffy, 11 Cash. 145 (1853). w C. v. Roberts, 108 Mass. 296 « C. V. Cox, 7 Allen, 577 (1863). (1871). 24 370 OF CRIMINAL PROCEDURE. [Pakt IV. ney nol. prossed " so much of this indictment as charges rape," it was held that a verdict convicting defendant of an assault was good, though a rape was proved ; the assault be- ing an element in the rape, and the nol. pros, not extending to it ; but that the jury could not convict of any acts of as- sault not charged in the indictment and not an ingredient in the rape charged.^ In a trial for breaking and entering with intent to commit a rape, the jury were instructed to acquit or to convict of the entire charge. It was held that defendant had no cause to complain, as the instruction prevented a con- viction unless the aggravation was proved.^ § 458. Special verdict. In 0. v. Call, 21 Pick. 609 (1839), the jury rendered a special verdict finding defendant guilty of the offence charged. It was objected, inter alia, that it did not find that the offence was committed in the County of Suffolk, as charged in the indictment. It was held that the omission was not tantamount to an acquittal, and only entitled defendant to a new trial. A special verdict against a receiver of stolen goods is not good unless it find that he " received the goods described in the indictment.^ On an indictment for an assault with intent to ravish, the verdict was " not guilty ; but guilty of an assault and unlawful in- tercourse." It was held that this was not a special verdict; that the " unlawful intercourse," not being charged, was im- material ; and that the judgment was good for a simple as- sault.* A verdict of guilty of murder in the second degree is a general, not a special verdict, and covers the whole indict- ment.^ § 459. When verdict set aside. Indictment charging the giving of medicine to a pregnant woman to produce abortion, under St. 1845, c. 27, which was in force when the offence was committed. The jury were instructed that defendant might be convicted under Gen. Sts. c. 165, § 9, which applies even where there is no pregnancy. As the jury might thus 1 C. V. Dean, 109 Mass. 349 (1872). * C. v. Fischblatt, 4 Met. 354 (1842). « C. V. Doherty, 10 Gush. 52 (1852). 6 c. v. Hartz, 109 Mass. 348 (1872). * Dyer v. C. 23 Pick. 402 (1839). Chap. XVIII.] VERDICT, WHEN SET ASIDE. 371 have convicted without finding the pregnancy, the verdict was set aside.i Where defendant was indicted for the lar- ceny of several articles worth together over $100, but each one of less than $100 in value, a general verdict of guilty was sustained, though it was found under such instructions that defendant may have been found guilty of the larceny of one article only, on condition that the prosecuting attorney would move for sentence as on a conviction of larceny of property under f 100 in value.^ Indictment in three counts, and gen- eral verdict of guilty. On inquiry by the court, at defendant's instance, the foreman said they had not passed on each count separately. The verdict was set aside.^ Where an instruc- tion with respect to the intent was legally good as to the first count, but not as to the others, a general verdict was sustained as to the first count, but not as to the bthers.* The first count in an indictment charged defendant as a common seller of liquors ; the second, third, and fourth counts with single sales. The verdict was "not guilty as a common seller, but guilty of two single sales." The court ordered a verdict of guilty to be entered on the second and third counts, without conference with the jury or with the parties. The verdict was set aside, as not conformed to the finding. Non constat, it was said, on which two counts he was convicted.^ A verdict agreed upon after the ofiicer had discharged the jury by order of the court was set aside.^ The jury were directed, on their agreeing dur- ing the adjournment, to seal up their verdict and separate. On their coming in, it appeared that they had agreed and separated without reducing the verdict to writing. The judge told them to reduce it to writing and return it without fur- ther deUberation ; which was done. The verdict was held to be invalid.' In Q. v. Jenkins, 10 Gray, 485 (1868), it is queried whether, if one of the jurors was not an inhabitant of » C. u. Grover, 16 Gray, 602 (1860). » C. v. Munn, U Gray, 364 (1860). =! C. V. Lawless, 103 Mass. 425 « C. u. TciwnsencI, 5 Allen, 216 (1869). (1862). ' C. V. Carry, 103 Mass. 214 (1869). ' C. v. Dorus, 108 Mass. 488 (1871). * C. V. Nickerson, 5 Allen, 518 (1862). 372 OF.CBIMINAL PROCEDURE. [Part IV. the county, and this fact was unknown to defendant until after the verdict, it would be sufficient ground to set it aside, § 460. Entering and recording. Where the verdict ren- dered was "guilty of assault and battery without felonious intent," it was held that the court might strike out the words " and battery " at the same sitting, no battery being charged ; and that the verdict as amended was sufficient.^ In libel, the verdict was " guilty of publishing, but not guilty as to the rest." It was held that the clerk might record, " guilty of publishing as alleged in the indictment, and not guilty as to ihe residue ;" that this was equivalent to a general verdict of guilty ; and that proof of publication was sufficient to substan- tiate the charge that defendant " composed, wrote, printed, and published." ^ In a verdict of guilty of an assault with intent to maim, " without intent," these words are equivalent to " without the intent charged in the indictment," and it is a sufficient conviction of a simple assault.^ " Guilty, but not of taking the gold piece," may be remoulded by the court into regular form against defendant's objection ; and though the jury have separated under mutual agreement of the parties.'' To the finding of "guilty "the foreman added "under in- struction of the court," and the jury affirmed simply the ver- dict of " guilty," as read by the clerk. It was held that this cured the irregularity, if any there was.^ The officer had handed to the jury a form of verdict as follows : " In case of Commonwealth v. , the jury find defendant guilty or not guilty, as the case may be." The word " guilty " was added to this with the foreman's signature. The verdict being af- firmed by the jury in open court, it was deemed sufficient.® § 461. Special points. In misdemeanors, the jury may be allowed to separate during a recess of the court, with the instruction that, if they agree during the adjournment, they may seal the verdict up, affirming it afterwards in open court.' 1 C.K.Lang, 10 Gray, 11 (1857). » C. v. Dowling, lU Mass. 259 2 C. V. Morgan, 107 Mass. 199 (1871). (1873). 3 C. V. McGrath, 115 Mass. 150 ^ C. o. Carrington, 116 Mass. 37 (1874). (1874). 4 C. V. Stebbins, 8 Gray, 492 (1857) ' Ibid. Chap. XVm.] * VERDICT. 373 Where the jury have been allowed to separate on a sealed verdict, they cannot come into court after their separation and render an oral one, unless the sealed verdict be opened and read by the court.^ A judgment is not reversible on writ of error on a verdict on one count, though there was no verdict rendered on the other counts. This would amount simply to a discontinuance or nol. pros, of those counts on which there was no finding, or an acquittal upon them.^ In Massachu- setts a defendant, even in capital cases, has no right to have the jury polled.^ If the jury disagree, they may be dis- charged, and defendant may be tried again before another jury, even in a capital case. This is one of the accidents ad- mitted to be exceptions to the general rule that no man shall be " twice put in jeopardy of life or limb," in order to pre- vent a failure of justice.* 1 C. V. Durfee, 100 Mass. 146 (1868). = C. v. Roby, 12 Pick. 496 (1832) ; 2 Edgerton v.C. 5 Allen, 514 (1862). C. v. Costley, 118 Mass. 1 (1875). * C. V. Purchase. 2 Pick. 521 (1824). CHAPTER XIX. "WAIVEK. § 462. In general. By not pleading a misnomer in abate- ment, defendant admits himself to be rightly called by the name stated, and may be therefore indicted and convicted as " A., alias B." ^ A misnomer not pleaded in the court below is waived, and cannot be pleaded on appeal, which is only on the issues raised below.^ If defendant omit to have the ques- tion of idem sonans left to the jury, and the court decides it, the Supreme Court cannot revise the decision on exceptions.^ Exceptions not argued in the Supreme Court are assumed to be waived.* By escaping from jail defendant waives his right to be heard on exceptions. The attorney general is entitled to have him in court to abide its judgment upon them.^ A justice of the peace, who was also trial justice, issued a war- rant to take J. S. before himself " or some other justice of the county." By St. 1850, c. 314, the warrant was returnable before the justice himself, and him only. It was held that inasmuch as the justice had jurisdiction, defendant had waived the objection to the irregular warrant by not raising it before the justice.® Where no issue of law or fact was taken on a plea of autrefois acquit, but defendant went to trial upon it, it was held that he thereby waived the informality.'' Where defendants jointly indicted are entitled to separate trials, the objection is waived if not taken at the trial.^ Pleading a par- 1 Turner v. C. 6 Met. 224 (1843). « C. v. Henry, 7 Cush. 512 (1851). 2 C. V. Darcey, 12 Allen, 539 (1866). ' C. C. V. Walton, 11 Allen, 238 (1865) ; » C. w. Wolcott, 110 Mass. 67 (1872) ; C. V. Emmons, 98 Mass. 6 (1866). C. v. Snow, 116 Mass. 47 (1S74). * C. V. Loghlin, 15 Gray, 569 » C. «. Hart, 123 Mass. 416 (1877). (1869). 1° C. V. Dean, 9 Gray, 283 (1857). » C. V. Curtis, 11 Pick. 134 (1831). " C. v. Smith, 111 Mass. 407 1873). 6 C. V. Betton, 5 Cush. 427 (1850). ^ C. v. Field, 9 Allen, 581 (1865). 13 0. V. Doyle, 110 Mass. 103 (1873). Chap. XIX.] WAIVER. 377 In O. V. Doty, 2 Met. 18 (1840), it was held that under Rev. Sts. c. 138, § 2 (Gen. Sts. c. 173, § B), a defendant cannot be convicted in the appellate court unless the copy of the pro- ceedings transmitted by the justice of the peace be certified by him, and that the objection is not waived by defendant's giong to trial without raising it. (See Revisoky Proceed- ings, ante, p. 341.) CHAPTER XX. WARRANT. {Gen. Sts. c. 86, §§ 16, 17, 42 et seq. ; c. 116, §§ 25, 26, 28; c. 120, § 32; c. 170, §§ 1-5 ; c. 177, §§ 3 et seq. — St. 1876, c. 94.) § 465. Validity. The mittimus of a justice of the peace should recite the complaint on which it is founded ; ^ but it is a general rule, that where a process or instrument definitely re- fers to a paper annexed to it, it is to be deemed a part of it, as if recited at length. So, although, by statute, a warrant must recite the substance of the accusation, it is suiScient if the complaint be on the same paper with the warrant, which refers to it, as by the words " the offence described in the above complaint." ^ It is no ground for discharge from arrest that the warrant contained no command to " make due return thereof." This it was the officer's duty to do without com- mand.^ A justice of the peace continuing to act after the ac- ceptance of another and incompatible office is nevertheless a justice de facto as to third persons, and his warrant will justify an officer serving it. But in Massachusetts the office of jus- tice of the peace is not incompatible with that of constable, provided there is no acting in both capacities in the same case.* A warrant for the arrest of "John Doe or Richard Roe, whose other or true name is unknown," containing no other description or means of identification, is void, and may be resisted ; and third persons may lawfully aid in resisting it.* In Pearce v. Atwood, 13 Mass. 324 (1816), it was held that St. 1791 did not authorize a complaint and warrant for 1 C. V. Ward, 4 Mass. 497 (1808). * C. v. Kirby, 2 Cush. 577 (1848). 2 C, V. Dean, 9 Gray, 283 (1857). ' C. v. Crotty, 10 Allen, 403 (1865). « C. V. Boon, 2 Gray, 74 (1854). Chap. XX.] SEARCH-WARRANT. 379 travelling on the Lord's Day to be made on that day, and that an arrest under such process on that day was illegal, and the oflBcer a trespasser. An officer's custody of his prisoner under a warrant continues until his discharge or a new commit- ment.i § 466. Extradition. The clause in the Federal Constitution requiring the surrender of fugitives from another state charged with " treason, felony, or other crimes," applies to any offence indictable under the laws of the State demanding the sur- render ; and the statement in the governor's warrant of arrest that the fugitive has been so charged sufficiently sets forth the fact, though the allegation would not be sufficient to put him on trial in his own State ; ^ and the governor's warrant is primd facie evidence, at least, that all necessary prerequisites have been complied with.^ The sufficiency of the indictment to charge a crime under the laws of the demanding State may be examined on habeas corpus after the alleged fugitive's ar- rest ; but if it be then found that the indictment substantially does this, defects merely formal will be disregarded, and the prisoner will be remanded.* § 467. Search-warrant. A warrant " to search for the things mentioned in the above complaint," without further description, is sufficient if on the same paper with the com- plaint.^ " The office of B." sufficiently describes the place for the search of lottery tickets, if the street and . number be truly stated, though A. occupy the office jointly with B.^ § 468. Proceedings on search-warrant. A constable may serve a search-warrant issued on his own complaint.'^ On a search-warrant for a criminal, the officer may, after his ad- mission inside of the outer door of a house in which he has reasonable cause to believe and does believe the accused to then be, lawfully make his search ; and he is not bound to show his warrant if the householder has reasonable notice of 1 C. V. Morihan, 4 Allen/ 585 ^ q_ „. Dana, 2 Met. 329 (1841). (1862). 8 Ibid. 2 Brown's case, 112 Mass. 409 (1873). ' C. u. Intox. Liq. 6 Alien, 596 Davis's case, 122 Mass. 324 (1877). (1863). * Ibid. 380 OF CRIMINAL PROCEDURE. [Paet IV. his being an officer (as by his police badge and uniform), and of his acting under a warrant for one supposed to be there.^ Under St. 1869, c. 364, the officer's seizure is not limited to property liable to condemnation under the act ; but extends to other property found on the premises that may be useful as evidence of the business transacted there.^ Books pertain- ing to a lottery are " materials for a lottery " under Rev. Sts. c. 142 (Gen. Sts. c. 170), and may be seized on a search-war- rant.^ Lottery tickets seizable under Rev. Sts. c. 142, §§ 1, 2 (Gen. Sts. c. 170, §§ 1, 2), and brought into court as evidence under an illegal warrant, are not liable to be burnt under §5.* If an officer undertake to search a room or a closet occupied by a person other than the defendant in the search-warrant, the occupant may lawfully resist the search by force. And the officer's belief that the premises in question were really occupied by the defendant in the search-warrant will not af- fect the occupant's rights.* (See Aeeest, ante, p. 277.) 1 C. 1^. Irwin, 1 Allen, 587 (1861). < C. v. Lottery Tickets, 5 Cash. 369 = C. V. Gaming Implements, 119 (1850). Mass. 332 (1876). ^ C. v. Newton, 123 Mass. 420 3 C. V. Dana, 2 Met. 329 (1841). (1877). PART FIFTH. OF OFFENCES UNDER THE LIQUOR LAWS, AND OF THE PLEADINGS, EVIDENCE, AND PRO- CEEDINGS THEREIN. {Gen. Sts. cc. 86, 87 — ^i. 1861, c. 136— AV. 1865, c. 223— 5i!. 1866, c. 280, § Z — St. 1868, cc. 141, 311, 318, 344— /S. 1869, cc. 191, 415, Wi — St. 1870, cc. 389, 390— /S. 1871, cc. 334, Zll—St. 1872, cc. 271, 304, Zll — St. 1873, cc. 42, 328— /St. 1875, cc. 43, 99 — -S^ 1876, c. 162— *». 1877, c. 129.) § 469. In General. Offences under the Liquor Laws now or heretofore in force come under some one of the following heads : — 1. The manufacture, and also the unlawful sale, of spiritu- ous or intoxicating liquors. 2. Being a common seller of such liquors. 3. Exposing or keeping such liquors for unlawful sale. 4. Keeping or maintaining any building, place, or tenement used for the illegal keeping or sale of such liquors. 5. Transporting or receiving such liquors for transporta- tion, having reasonable cause to believe them to have been, or to be intended to be, unlawfully sold. CHAPTER I. OP THE MANTJPACTUEE AND SALE OP LIQTJ0E3. THE OPPENCE. § 470. Statutes. Gen. Sts. c. 86, § 28, provides as fol- lows : " Sect. 28. No person shall manufacture for sale, or sell by him- self, his clerk, servant, or agent, directly or indirectly, any spirituous or intoxicating liquor, or any mixed liquor part of which is spiritu- ous or intoxicating, unless he is authorized as provided in this chap- ter. Ale, porter, strong beer, lager-beer, cider, and all wines shall be considered intoxicating liquors within the meaning of this chapter, as well as distilled spirits ; but this enumeration shall not prevent any other pure or mixed liquors from being regarded as intoxicating.'' This section was reenacted in St. 1869, c. 415, § 30, but with the omission of the word " cider." By St. 1870, c. 389, § 1, the latter statute was amended by striking out the words " ale, porter, strong beer, lager-beer," the manufacture and sale of which liquors were expressly authorized by § 2. But by St. 1871, c. 884, the words " ale, porter, strong beer, lager- beer," were restored. The law now stands, therefore, as enacted in § 80 of c. 415, St. 1869 ; that is to say, that these four liquors are conclusively presumed to be intoxicating. § 471. Unlawful sales. A license to sell " wine, beer, ale, cider, or any other fermented liquor," does not authorize the sale of spirituous liquors.^ Under Rev. Sts. c. 47, § 2, it was held that liquor sold to be used on defendant's premises need not be under twenty-eight gallons to authorize a conviction ; this limitation being made only in § 3, and applying to a re- tailer of a less quantity than twenty-eight gallons, " and that 1 C. V. Markoe, 17 Pick. 465 (1835) • C. v. Jordan, 18 Pick. 228 (1836). Chap. I.] SALES THROUGH AGENTS. 383 delivered and carried away all at one time." ^ Under St. 1855, c. 215, § 1 (Gen. Sts. c. 86, § 28), unfermented cider was held to be intoxicating ; ^ and under St. 1875, c. 99, § 18, ale is deemed intoxicating, as well as distilled spirits ; ^ but under St. 1869, c. 415, the sale of cider at a public bar to be drunk on the premises is not an offence, unless proved to be intoxicating.* § 472. What constitutes a sale. A sale on credit is within St. 1855, c. 215, § 15 (Gen. Sts. c. 86, § 30).5 In 0. V. Grreenfield, 121 Mass. 40 (1876), defendant was selling beer, &c., at Pittsfield, under a license. J. S., residing at Lee, where the sale of beer was unlawful, ordered of defendant twenty bottles of lager-beer. The order was executed, de- fendant himself carrying the beer to J. S. at Lee, and there receiving the money for it. It was held that the sale was completed at Lee, and defendant was convicted. (But semhle, the contract of sale was complete at Pittsfield by defendant's assent to the order, and this sufficed to pass the property.) An exchange by a distiller of liquor for grain is a sale, though the grain be not delivered till afterwards.^ Where two persons buy liquor together, each taking his own, it is a separate sale to each, though one of them pay for both.^ § 473. Sales through agents. A sale by A. through an agent is a sale by A. himself ; ^ but a sale by a clerk must be shown to be with the knowledge of the principal, and with his assent.' If the agent of a club buy liquor for it as such agent, and distribute it among the members on any plan agreed upon, this is not in law a sale to the club, though he receive a per- centage out of the proceeds as compensation for his services. Otherwise where this is only a cover ; as if the club should lend the defendant money to buy liquors to sell to them. But this would be a question of fact.' 10 1 C. V. Churchill, 2 Met. 118 (1840) ; ' C. v. Clark, 14 Gray, 367 (1860). C. V. Brown, 12 Met. 522 (1847). ' C. v. Very, 12 Gray, 124 (1858). " C. t. Dean, 14 Gray, 99 (1860). 8 c. „. Park, 1 Gray, 553 (1854). ' C. V. Curran, 119 Mass. 206 (1875). » C. v. Wood, 4 Gray, 11 (1855). 4 C. V. Chappel, 116 Mass. 7 (1874)'. i' C. v. Smith, 102 Mass. 144 (1869). » C. V. Burns, 8 Gray, 482 (1857). 384 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V As to the agent's personal liability, it was held (under Rev. Sts. c. 47, §§ 1, 2) that a bar-tender or other hired agent is equally liable with the owner, though he have no interest in the profits of the sales, and be acting in the presence of the owner, and under his control.^ But one acting only as a mes- senger between the buyer and seller is not personally liable. If, however, he assume to sell for the owner, though without authority, he makes himself liable.^ § 474. Husband and wife. If defendant's wife sell liquor in her husband's presence, and with his knowledge, this is primd facie evidence of her selling as his agent, rebuttable by evidence showing the contrary.^ A wife is punishable for selling liquor, though her husband provided it, he not being present; for then the presumption of coercion fails.* A wife selling in her husband's absence is punishable, unless it be proved she was acting under his cora- pulsion.6 Under St. 1855, c. 215, § 17 (Gen. Sts. c. 86, § 31), a wife makes herself liable for selling liquors as her husband's agent, by delivering them under a contract of her husband with the buyer.^ But a wife is not punishable if her husband be near enough to exercise control over her, though not in the same room.' § 475. Defences. St. 1855, c. 215 (Gen. Sts. c. 86, § 28), is not unconstitutional, and its prohibition of the sale of liq- uors applies to those owned by defendant at the passage of the act.^ Under Rev. Sts. c. 47, it seemed, it was no defence that the liquor was sold as a medicine, and to be used as such ; ^ and under St. 1869, c. 415, it has been held to be no defence that it was sold as a medicine, and that defendant did not know that it was intoxicating.^'' It is no defence that the sale was made on the Lord's Day, and therefore not legally 1 C. V. Hadley, 11 Met. 66 (1846). 6 C. v. Murphy, 2 Gray, 510 (1S54). 2 C. V. Williams, 4 Allen, .'587 « C. «. Whalen, 16 Gray, 25 (1860). (1862). ' C. v. Bark, 11 Gray, 437 (1858). 5 C. u. Van Stone, 97 Mass. 549 ' C. v. Logan, 12 Gray, 136 (1858). (1867). ' C. I). Kimball, 24 Pick. 366 (1837). 1 C. V, Welch, 97 Mass. 593 (1867 ); ' " C. v. Hallett, 103 Mass. 452 (1869). C. «. Freney, 13 Alien, 560 (1866). Chap. I.] SALE OF LIQUORS. — DEFENCES. 385 valid ; ^ or as being an act punishable under another statute j^ for one may be punishable for two distinct offences com- mitted in one act.^ A United States license to sell liquors at wholesale does not override a statute of Massachusetts which is a mere police regulation.* Neither does a United States license to retail liquor constitute a defence.^ United States St. 1872, c. 315, substituting a special tax for a license for carrying on the liquor business, does not legalize the sale of liquors in Massachusetts.^ Assuming that, under Rev. Sts. c. 47 (Gen. Sts. c. 88, §§ 1-22), it was the duty of the county commissioners to issue licenses for the sale of liquors, their refusal to issue any whatever, it was held, did not annul the statutes, or authorize the sale of liquor without a license.^ It is no defence for a clerk indicted for the sale of liquor that the sale had been forbidden by his employer.^ Three or more sales do not necessarily merge the offence into the greater one of being a common seller ; so a defendant was held liable under eighteen separate counts for separate sales in one day.*, But this was under the special provision in § 7, of St. 1852, c. 322, which was as follows : " Two or more acts of violation of the provisions of this section may be alleged in the same complaint or indictment, and be tried at the same time ; and conviction thereon, or on any of them, shall operate upon the defendants in the same manner as if the actions had been upon separate complaints, and the convictions had at separate trials." Under St. 1875, c. 99, §§ 6, 12, a license to sell liquors is forfeitable only by a conviction in a competent court of vio- ' lating the provisions of the license or of the statute, or else by the mayor and aldermen, " after notice to the licensee and 1 C. V. Harrison, 11 Gray, 310 ^ C. w. Keenan, 11 Allen, 262 (186.5); (1858). C. V. Lannan, 13 Allen, 563 (1866). 2 C, V. McCurdy, 109 Mass. 364 6 C. o. Sanborn, 116 Mass. 61 (1872). (1874). 8 C. u. Trickey, 13 Allen, 559 (1866). ' C. v. Blackington, 24 Pick. 352 « C.iJ.Tliomiley, 6 Allen, 445 (1863); (1837). C. V. O'Donnell, 8 Allen, 548 (1864). » c, „_ Tinkham, 14 Gray, 12 (1859). » C. V. Porter, 4 Gray, 426 (1856). 25 386 OFFENCES UNDER THE LIQUOR LAWS. [Pabt V. reasonable opportunity to be heard," on proof of a violation, or of permitting a Tiolation. Mere proof of a vote that the license was " revoked " was therefore held insufficient.^ § 476. Town ordinances. Under St. 1855, c. 215, § 6 (Gen. Sts. c. 86, § 17), it was held that a town agent for the sale of liquors could not act till the giving of the bond re- quired ; which was a condition precedent to his obtaining a certificate.^ Under St. 1847, c. 166 (Gen. Sts. c. 18, § 11), the power to towns to make by-laws to " preserve peace, good order, and internal police," and penalties to enforce them, does not authorize them to make a by-law punishing the sale of strong beer.^ The vote of a town as to a prohibition of liquor sales may be taken by show of hands ; and the mode of taking it need not be decided by a formal vote beforehand.* THE COMPLAINT OR INDICTMENT. § 477. Manufacture of liquors. Counts for manufactur- ing for sale, being a common seller, and for single sales, in violation of St. 1855, c. 215 (Gen. Sts. c. 86, §§ 28 et seq.), may be joined in the same indictment.^ Under the same statute, § 17 (Gen. Sts. c. 86, § 31), neither the kind nor the quantity sold need be alleged, nor that it was made to be sold in Massachusetts.^ " And without any license " sufficiently negatives any authority to sell under any provisions of that statute.'^ § 478. Sales; when complaint sufficient. A charge of presuming to be a seller, and of selling, was held not to be double under Rev. Sts. c. 47, § 3.^ A charge that "defend- ant, on a certain day, sold liquor to A., and also, on another day, sold liquor to B.," is not double ; for these are two counts.® " Defendant sold to A. B. to be used in his dwelling-house," was construed to mean defendant's dwelling-house, the real 10. V. Moylan, 119 Mass. 109 ' C. «. Clark, U Gray, 367 (1860). (1875). « Ibid. 2 C. V. Pillsbury, 12 Gray, 127 ' Ibid. (1858). ' C. V. Wilcox, 1 Gush. 503 (1848). 8 C. V. Turner, 1 Gush. 493 (1848). » G. v. Dillane, 11 Gray, 67 (1858). « G.». Doe, 108 Mass. 418 (1871). Chap. I.] SALE OF LIQUORS. — THE COMPLAINT. 887 meaning being apparent.^ A complaint of J. S. for a sale to " the said J." is sufiBcient.^ A charge of a sale " to a person unknown " is sufficient ; complainant, when making the com- plaint, knowing no particulars as to name or time, but only- being informed of a sale at some time to somebody.^ A charge of a sale to a person " not known by complainant," sufficiently avers that the person was not known " to " com- plainant.* " Did sell intoxicating liquor to ," is equally certain as if it alleged a sale to " a person unknown." In any future plea of autrefois convict, the identity of the offence subsequently charged would have to be proved by evidence, and this proof would be no more difficult than if the charge had read " to a person unknown." ^ It was held that a count under St. 1838, c. 157, charging a sale of brandy and other spirituous liquors, need not state the kind of liquor sold ; ^ and that a count under Rev. Sts. c. 47, § 3, need not state the kind of liquor sold, nor to whom sold, nor by whom carried away.'' Where the liquor was sold together with another article, it is sufficient to allege the sale of the liquor only.^ A complaint under St. 1855, c. 215, § 15 (Gen. Sts. c. 86, § 80), being sworn to, was held sufficient, though there had been no " ex- amination of complainant under oath." ^ " At Worcester, in the county of Worcester," sufficiently indicates the offence to have been committed in the city of Worcester.^" " At Fram- ingham," without adding " in Middlesex," was held suffi- cient ; the court knowing the fact omitted judicially.^! § 479. When insuflftoient. A complaint to a justice of the peace under Rev. Sts. c. 47, § 3, was held to be defective as a basis of final judgment, in not stating to whom the sale was made, or that it was made to a person unknown, nor that the quantity was less than twenty-eight gallons, or that it was 1 C. V. Stowell, 9 Met. 569 (1845). 6 C. v. Odlin, 23 Pick. 275 (1839). 2 C. V. Melling, 14 Gray, 308 (1860). ^ C. v. Wilcox, 1 Gush. 503 (1848). s C. V. Crawford, 9 Gray, 129 » C. «. Thayer, 8 Met. 525 (1844). (1857); C. «. Hitching's, 5 Gray, 482 » C. o. Farrell, 8 Gray, 463 (1857). (1855). 1" C. V. Bennett, 108 Mass. 27 (1871). * C. V. Griffin, 105 Mass. 175 (1870). " Green v. C. HI Mass. 417 (1873). « Green v. C. HI Mass. 417 (1873). 388 OFFENCES UNDER THE LIQUOR LAWS. [Part V. to be consumed in the shop.^ Where a defendant was in. dieted under Rev. Sts. c. 47, § 2, for selling spirituous liquor " without being duly licensed as an innholder," and it ap- peared that he had been licensed as a taverner, to sell fer- mented liquors only, it was held that he could not be con- victed. The charge should have been according to the fact, averring a license to sell fermented liquors only.^ " On the 3d and 29th July sold one gill of brandy," was held to charge but one sale, and to be fatally defective in not fixing either day certainly .2 A complaint is bad that alleges the offence to have been committed on a day then future, and will be quashed even after conviction in the appeal court, though the objection have not been taken before the trial justice.* § 480. Sale to an agent. A sale to an agent, defendant knowing him to be buying for his principal, must be charged as a sale, to the principal ; ^ and a sale to an undisclosed prin- cipal may be charged either as a sale to the principal or to the agent. ^ § 481. Joinder of defendants. Two or more may be jointly indicted for selling without a license; and "without being licensed " implies " jointly or severally." ' Where two defendants are jointly indicted for sales of liquor, single sales being relied on, one alone may be legally convicted ; the of- fence being such that it could have been committed by either defendant separately.^ § 482. Negativing authority. A charge of a sale of liquor to be used on defendant's premises need not negative a license to sell for mechanical purposes under St. 1850, c. 232 ; for in the latter case, the liquors are to be carried away.^ A charge of selling " without any legal authority or appoint- ment," sufficiently negatives the right to sell in any way not 1 C.u. Dean, 21 Pick. 334 (1838). (1858); C. v. Very, 12 Gray, 124 > C. V. Thayer, 5 Met. 246 (1842). (1858). » C. 0. Adams, 1 Gray, 48 (1854). ' C. v. Sloan, 4 Cush. 52 (1849). * C. V. Doyle, 110 Mass. 103 (1872). * C. v. Cook, 12 Allen, 542 (1866). » C. V. E«mby, 2 Gray, 508 (1854). ' C. v. Shaw, 5 Cush. 522 (1850). e C. V. McGuire, 11 Gray, 460 Chap. I.] SALE OF LIQUOKS. — THE COMPLAINT. 389 prohibited by statute.^ So under St. 1855, c. 215, § 1 (Gen. Sts. c. 86, § 28). ^ " Not having authority by law," negatives all sales warranted by law.^ So as to " not duly appointed and authorized."* The words " illegal sale" suffice to neg- ative all legal authority.^ " Not. being then and there author- ized," sufficiently negatives all authority under St. 1875, c. 99, or from any other source.® § 483. Quantity sold. A charge that defeadant " was re- tailer of spirituous liquors in less than twenty-eight gallons, and did then and there sell two quarts of spirits to J. S.," was held sufficient.'^ A complaint under Sts. 1852 and 1855 did not need to specify the quantity of liquor sold ; ^ and under Rev. Sts. c. 47, it was held sufficient to charge that defendant "sold liquor to A. less than twenty-eight gallons."^ Under St. 1838, forbidding the sale of any quantity under fifteen gal- lons, a count stating the sale of one pint, without negativing the sale of fifteen gallons or more, was held bad. Non con- stat, it was said, but the pint was a part of fifteen gallons sold. But where the charge was the sale of " a less quantity than fifteen gallons, to wit, two quarts," the complaint was held to be good.^" A complaint under Rev. Sts. c. 47, charg- ing that defendant sold less than twenty-eight gallons, " not being licensed as retailer of spirits," was held bad ; for he might have been licensed as innkeeper. There was nothing to indicate whether the liquor was to be drunk on the prem- ises or to be carried away. If it was to be drunk on the prem- ises the sale by him would have been lawful as innkeeper, and his want of an innkeeper's license should have been averred. ^^ § 484. What is immaterial. " On divers days presumed to be a seller of liquors," &c. ; this followed by an averment of a sale of a half pint to A. B. It was held that the first 1 C. 0. Lafontaine, 3 Gray, 479 ^ C. v. Tredericks, 119 Mass. 199 (1854). (1875). 2 C. V. Clapp, 5 Gray, 97 (1855). ' Goodhue v. C. 5 Met. 553 (1843). 8 C. a. Conant, 6 Gray, 482 (1856). « C. v. Conant, 6 Gray, 482 (1856). * C. V. Roland, 12 Gray, 124 (1858). 9 C. u. Roberts, 1 Gush. 505 (1848). 6 C. V. Edds, 14 Gray, 406 (1860). l° C. v Odlin, 23 Pick. 275 (1839). " C. V. Roberts, 1 Gush. 505 (1848). 390 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V. clause might be struck out as surplusage.^ A complaint charging " not being licensed to sell wine, brandy," &c., was held good, though defendant proved he was licensed to sell wine. The word " wine " could be rejected as surplusage, and the statement was immaterial to the charge, which was for a sale of spirits.^ A complaint under Rev. Sts. c. 47, § 3, was held good, charging a sale of less than twenty-eight gallons, though not alleging it was " not delivered and carried away all at one time ; " for this clause was necessary only where the sale was over twenty-eight gallons. A sale of less than twen- ty-eight gallons was of itself an offence under that section.^ " Presumed to be a seller," &c., on a certain day, " and did then and there sell to A. B.," was held not bad for duplicity. The first clause did not charge the distinct offence of being a common seller, the sale being alleged to be only on a certain day, and not continuously during any period of time. It could therefore be rejected as surplusage, and the remainder was suflacient to charge a single sale.* " Defendant not being licensed as an innholder, and without authority or license therefor." Defendant having proved a license as an innholder, it was held that the former of these clauses could be stricken out as surplusage, the latter clause being suificient of itself.^ § 485. Other statutory averments. " Was retailer to A." sufficiently shows a sale to A.^ Under Rev. Sts. c. 47, § 2, it was not necessary to allege a sale of liquor in defend- ant's dwelling-house. The statutory offence was selling " to be used " in defendant's house.' Under this section, a com- plaint that A. sold liquor to B., to be used by B. in the house by A. occupied," was held sufficient.^ Under St. 1855, c. 215, § 1 (Gen. Sts. c. 86, § 28), it need not be averred that the sale was made in a house or tavern, or other place of public resort, notwithstanding § 34 (Gen. Sts. c. 86, § 33).® A com- plaint under St. 1855, c. 215, § 15 (Gen. Sts. c. 86, § 30), 1 C. V. Bryden, 9 Met. 137 (1845). ^ c. v. Kimball, 7 Met. 304 (1843). 2 C. I.: Thayer, 8 Met. 523 (1844). ' C. v. Stowell, 9 Met. 569 (1845). s C. V. Leonard, 8 Met. 530 (1844). * C. v. Moulton, 10 Cash, 404 (1852). » C. u. Stowell, 9 Met, 569 (1845). » C. v. Clapp, 5 Gray, 97 (1855). s C. V. Baker, 10 Gush. 405 (18.52). Chap. I.] SALE OF LIQUORS. — THE EVIDENCE. 391 need not name the disclosing witness as a witness ; the provi- sion in § 23 (Gen. Sts. c. 86, § 40) requiring this being only directory. It was not intended to change the form of the complaint.^ Under § 34 of this statute (Gen. Sts. c. 86, § 33) making a delivery elsewhere than in a dwelling-house primd facie proof of a sale, the complaint need not set forth the circumstances of the sale.^ A complaint under St. 1875, c. 99, § 1, need not negative the exceptions in § 6.^ Under St. 1855, c. 215, § 1 (Gen. Sts. c. 86, § 28), liquors not in- toxicating may be described as intoxicating ; the statute de- claring that they shall be deemed so.* Under § 15 of that statute (Gen. Sts. c. 86, § 30) an averment of the sale of " intoxicating liquors " is sufficient without specifying the' kind ; 5 or describing them as spirituous;^ and under St. 1875, c. 99, the complaint .need not allege that the liquors sold " were not cider or native wine made by defendant himself, and not sold to be drunk on the premises." ^ But a complaint charging a sale of " spirituous or intoxicat- ting liquor " is bad, even after a nolo contendere ; these two terms not being identical in meaning. It would be otherwise if one of these terms were used only as explanatory of the other.^ Under Rev. Sts. c. 47, § 3 (that no one should pre- sume to be a seller, &c.), one actual sale was sufficient; for this was what the provision referred to. Therefore it was not sufficient to follow the words of the statute. It was neces- sary to aver a sale at some certain time and place, to a person named, or to one unknown.^ THE EVIDENCE. § 486. Witnesses. The buyer of spirituous liquor is com- pellable to testify. He is not criminally liable either by stat- ute or at common law. It is undoubtedly a misdemeanor at common law to solicit the commission of a crime ; bat this 1 C. W.Davis, U Gray, 457 (1858). 6 Eatchelder v. C. 109 Mass. 361 2 C. V. Golding,14 Gray, 149 (1859). (1872). ' C. V. Davis, 121 Mass. 352 (1876). "> C. v. Burke, 121 Mass. 39 (1876). ' C. V. Timothy, 8 Gray, 480 (1857). 8 c. „. Gray, 2 Gray 501 (1854). ' C. V. Eyan, 9 Gray, 137 (1857). ^ C. v. Thurlow, 24 Pick. 374 (1837). 892 OITENCES UNDER THE LIQUOR LAWS. [Pakt V. principle applies only to felonies, or to highly aggravated mis- demeanors.i A witness who bought liquor expressly for the purpose of testifying is competent for the prosecution. The jury should be instructed to receive his testimony with the greatest caution and distrust ; but the judge's refusal so to instruct is no ground for exception.^ A sale may be proved by a disclosing witness who has been arrested for drunken- ness, and who has disclosed on a promise of discharge, and not being prosecuted ; and the court is not bound to charge the jury to receive his testimony with caution and distrust.^ A sale is provable by other persons than the purchaser.* § 487. What evidence is admissible. Evidence is admis- sible of what implements, &c., were found in defendant's shop. The question whether the liquor was given away or sold might depend upon it ; ^ and evidence that defendant kept a public house and a bar is admissible as tending to show the sale of liquors.^ A witness may be asked, as to the beer he bought, what other name he heard of it, in order to show that it was of an intoxicating kind;'^ and, with the same view, if he had bought, or drunk beer bought of others.^ The testimony of a witness who had liquor in the office of de- fendant's public house is competent in corroboration of evi- dence of sales of liquor to another person at the same place.^ Evidence of single sales is admissible though it would support a complaint for nuisance under St. 1865, c. 405, § 1 (Gen. Sts. c. 87, § 6).^" Where the defendant has put in evidence his United States license to retail liquors, he cannot object to its being considered by the jury ; though this alone would be insufficient to convict. ^^ Evidence is competent that defendant had expressed ail opinion that he had a constitutional right 1 C. V. Waiard, 22 Pick. 476 (1839) ; ^ C. u. Norton, 16 Gray, 30 (1860). C. V. Kimball, 2i Pick. 366 (1837). ^ C. v. Gourdier, 14 Gray, 390 i C. V. Downing, 4 Gray, 29 (1855). (1860)- s C. V. Whitcomb, 12 Gray, 126 8 c, „_ White, 15 Gray, 407 (1860). (1858). ' C. V. Munu, 14 Gray, 361 (1860). 4 C. V. Tinkham, 14 Gray, 12 w C. ';. Maloney, 16 Gray, 20 (1860) (1859). 11 G.«. Keenan, 11 Allen, 262 (1865). 6 C. V. Lincoln, 9 Gray, 288 (1857). Chap. I] SALE OP LIQUORS. — THE BVIDENCB. 393 to sell liquors, and had declared his intention to exercise it ; although this evidence had been used against him on a pre- vious trial for another sale.^ Two complaints. On the trial of the first one, which was for a sale in September, evidence of sales both in September and in August was given ; but the prosecuting attorney withdrew the evidence of the August sales from the case, and the jury were instructed to disregard it. On the trial of the second complaint, which was for sales in August, the evidence of these sales was held admissible, it not having been submitted to the jury on the trial of the first complaint. It was further held that oral evidence was admis- sible to show what was submitted to the jury on the first trial.^ A witness cannot be asked to recur in his own mind to what he swore before the grand jury, and to then state when and how often he had obtained intoxicating liquor from de- fendant. If what he testified before the grand jury, it was said, was then true, it was true now, and can be testifiec^ to as a fact, without reference to the testimony before the grand jury. 3 Until the prosecution has made out a primd facie case, defendant's omission to produce rebutting evidence can- not be deemed a circumstance in the case.* § 488. Want of authority to sell. In C. v. Thurlow, 24 Pick. 374 (1837), it was held that the prosecution must give primd facie proof that defendant was not licensed to sell ; which could be easily done, inasmuch as a record of all li- censes granted was kept by the county commissioners. But this rule was reversed by St. 1844, c. 102, which threw the bur- den of proving a license on the defence. Before this change in the law it had been decided that the county commissioners' minutes were competent evidence, primd facie, that no license had been granted.^ In accordance with the statute, where the indictment charged defendant with selling " without any license, appointment, or authority therefor," it was held that if defendant had any kind of authority to sell, it was for him 1 C. V. Kimball, 24 Pick. 366 (1837). * C. v. Hardiman, 9 Gray, 136 2 C. V. Leonard, 9 Gray, 285 (1857). (1857). » C. u. Phelps, 11 Gray, 73 (1858). 6 c. o. Kimball, 7 Met. 304 (1843). 394 OFFENCES UNDER THE LIQUOK LAWS. [Paet V. to show it; but even if it were otherwise, the city clerk's Book of Licenses was sufficient.^ St. 1844, c. 102, requiring the defendant to prove a license for the sale of all spirituous or fermented liquors, applied to all intoxicating drinks under St. 1850, c. 232.2 St. 1844 was afterwards repealed, but St. 1864, c. 121, § 1, again threw the proof of an authority to se^l on the defendant.^ St. 1870, cc. 389, 390, authorizing sales of certain liquors where the town has not voted to prohibit them, does, not change the rule as to the burden of proof of authority to sell established by St. 1864, c. 121, § 1.* But though the whole evidence must show that defendant sold without lawful authority, the objection comes too late in the revisory court on exceptions, the point not having been dis- tinctly raised in the court below.^ § 489. Time of sale. The time of a single sale need not be proved as laid in the indictment ; ^ and this, though there be ajso a count of common seller, nol. prossed by the prose- cuting attorney at the trial.'^ Though the date of the sale to the witness differ from that in the complaint, the jury may convict if satisfied that complainant meant to complain of a sale actually made to the witness.^ A witness may be asked if he knew of a sale from a certain day to " the finding of the indictment." If this be uncertain, a cross-examination would correct any mistake.^ Where the only sale charged and tes- tified to was one by defendant's servant on the 12th of May, and the servant swore that he sold no liquor on that day, it was held that he could not be asked on cross-examination whether he did not see liquor on the premises after the 12th of May.i" The date of the trial below appearing on the rec- 1 C. V. Murphy, 10 Gray, 1 (1857) ; •> C. v. Stahl, 7 Allen, 303 (1863). C. V. Tuttle, 12 Cush. 502 (1853) ; C. ^ C. v. Dillane, 1 Gray, 483 (1854) ; V. Eyan, 9 Gray, 137 (1857). Same v. Same, 11 Gray, 67 (1858). 2 C. «.,Kelly, 10 Cash. 69 (1852). ■> C. v. Maloney, 16 Gray, 20 (1860) ' C. V. Carpenter, 100 Mass. 204 8 C. u. Burk, 15 Gray, 404 (1860). (1868) ; C. V. Shea, 115 Mass. 102 9 C. v. Shea, 14 Gray, 386 (1860). (1874) ; C. «. Belou, Ibid. 139. lo C. v. Page, 6 Gray, 361 (1856). * C. V. Kennedy, 108 Mass. 292 (1871). Chap. I.] SALE OF LIQUORS. — AGENCY. 395 ord, a witness may be asked if he bought liquor of defendant within a month before the trial.^ § 490. Sale to persons unknown. Where the complaint charges a sale " to a person unknown," if it be proved that he was known to complainant the defendant will be dis- charged from the complaint, though liable under a new one.^ A complaint charging a sale to a person " whose name is un- known " is supported by proof of a sale to A., personally known to complainant, but not known by him to have been the buyer.3 Indictment for sales " to persons unknown." On the trial, evidence was held admissible of sales to A., though A. had never testified before the grand jury. They might have had other evidence of sales to A. by witnesses who did not know his name. The question was, not whether the same evidence had been given before the grand jury, but whether the same facts were in issue.* § 491. Agency. Husband and wife. A sale by a clerk or servant is only primd facie evidence of his master's assent, rebuttable by proof of his really dissenting.^ Proof of a sale in defendant's public house by his son is sufiicient to author- ize the jury to findi that the sale was made by the son as defendant's agent.® But where the defendant is a clerk, evi- dence is not admissible for him that his employer had forbid- den the sale.'' Evidence of defendant's wife being on the premises is ad- missible to show defendant's control.^ A sale by a wife in her husband's house, though in his absence, is admissible in evidence against him.^ A witness's buying of liquor of de- fendant's wife in defendant's kitchen, he coming in while witness was there and saying nothing on the subject, is suffi- cient for conviction, if the jury be satisfied by these facts that 1 C. !). Melley, UGray, 39 (1859). « C. v. Holmes, 119 Mass. 195 2 C. V. Thornton, 14 Gray, 41 (1875). (1859). 7 c. V. Tinkham, 14 Gray, 12 8 C. u. Hendrie, 2 Gray, 503 (18.54). (1859). * C. V. Horrick, 12 Gray, 125 (1858). « C. v. Hogan, 11 Gray, 315 (1858). 6 C.t. Nichols, 10 Met. 259 (1843). » C. v. Conghlin, 14 Gray, 389 (1860). 396 OFFENCES UNDER THE LIQUOR LAWS. [Part V. the liquor was sold with his consent.^ The husband need not be literally present and in sight of his wife to raise the pre- sumption of coercion. If he be on the premises and near by, a momentary absence from the room might still leave her under his influence.^ § 492. "What evidence is sufficient. On the trial for the sale of liquor of a defendant under fourteen years of age, the capacity for crime must be proved as a distinct fact.^ A sale of spirituous liquor is proved by a sale of brandy mixed with sugar and water.* A charge of selling " intoxicating and mixed liquors, part of which were intoxicating," is sustained by proof of a sale of intoxicating liquors only. A sale of either is sufficient.^ A charge of a sale of "intoxicating liquor and mixed liquor " is sufficiently proved by the sale of gin alone. If any ofEence be proved it is sufficient, without proving the whole of the ofEence charged.® Where a witness bought of defendant a cake for six cents, and a decanter was set before him from which he helped himself, this was held to be sufficient for conviction if the jury believed that the six cents paid for both the cake and the liquor.^ The prosecu- tion need not prove gin to be intoxicatiiig. The jury are pre- sumed to know what everybody knows. It might as well be required to prove it to be a liquid.^ The charge was selling liquor to,"Chs. E. Malony." The sale proved" was to "Dr. Malony." After verdict, the variance was held to be no ground for a new trial, the jury being presumed to have been satisfied of the identity.^ While Rev. Sts. c. 47, § 3, was in force, it was held that proof of a different quantity being sold from that alleged constituted no variance, if any quantity were proved under twenty-eight gallons.^" The charge of a sale one day is provable by a sale on another day.^i Under 1 C. V. Reynolds, 114 Mass. 306 « C. i/. Leonard, 11 Gray, 458 (1858). (1873). . ' C. K. Thayer, 8 Met. 525 (1844). 2 C. V. Munsey, 112 Mass. 287 8 c. ^. Peckham, 2 Gray, 514 (1854). (1873). 3 C. V. Dillane, 1 Gray, 483 (1854). 3 C. V. Mead, 10 Allen, 398 (1865). w C. v. Buck, 12 Met. 524 (1847). 1 C. «. White, 10 Met. 14 (1845). " C. v. KeUy, 10 Gush. 69 (1852). 6 C. V. Burns, 9 Gray, 287 (1857). Chap. I.] SALE OF LIQUORS. — THE EVIDENCE. 397 St. 1855, c. 215, § 34 (Gen, Sts. c. 86, § 33), a delivery of liquor elsewhere than in a dwelling-house is primd facie evi- dence of a sale and is punishable as such ; though the pre- sumption may be rebutted by the attendant circumstances or by other facts in the case.^ Evidence of twelve sales in one month, though no particular day be specified, is sufficiently definite to authorize a conviction ; ^ and a charge of a sale on June 1 is sufficiently proved by the witness's statement that he had no doubt defendant had sold to him during the month, but could not recollect any particular day.^ A charge of a sale to A. is provable by a sale to A. as agent for B., A. not having disclosed the fact at the time.* But a complaint be- fore a justice of the peace of a sale to one person is not sus- tained on a trial in the appeal court by proof of a sale to a different one.^ On a trial in the appeal court complainant swore to the same sales he had sworn to in the Police Court. It was held to be immaterial that evidence of other sales had been given by other witnesses in the Police Court.^ If the evidence support the charge, it is presumed that the offence proved is the one charged in the iijdictment.'^ There is no legal presumption that a sale charged in an indictment found May 18 was after the 18th of May.^ It seems that where a statute requires the giving of a bond beifore a certificate of authority to sell liquor can be issued, the issuance of such certificate raises the presumption that the bond has been given.^ § 493. Evidence, when insufiaoient. The witness called for liquor at a public house kept by defendant, and some was brought to him by defendant's order. But the witness never paid for it, his offer to do so being declined. Held, there was 1 C.K.Wallace, 7 Gray, 222 (1856); . « C. u. McGrath, 102 Mass. 485 C. V. Harrison, 11 Gray, 310 (1858). (1869). 2 C. V. Lee, 12 Gray, 33 (1858). ' C. v. Maloney, 16 Gray, 20 (1860) ; s C.v. Carroll, 15 Gray, 409 (1860). C. v. Carroll, 15 Gray, 412 (1860). « Cu. Kimball, 7 Met. 308 (1843). ' C. v. DiUane, 1 Gray, 483 ' C. V. Blood, 4 Gray, 31 (1855). (1854). 8 C. V. Putnam, 4 Gray, 16 (1855). 398 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V. no sale proTed.i Mere proof of the sale of beer is not suf- ficient. It may have been small beer, not intoxicating.^ Primd facie evidence is such as may be conclusive if not re- butted or discredited. The mere delivery of liquor, therefore, in a public place is not per se sufl&cient proof of a sale, except in prosecutions under St. 1869, c. 415, § 35.^ The witness said " he would n't swear it was defendant ; he looked like him, and they called him Snow." Held insufficient.* A charge of a sale to " Hemessy " is not supported by proof of a sale to Hennessey ; the jury not finding that these two names have the same sound.^ § 494. Evidence for the defence. For the defence, evi- dence is not admissible of defendant's letter to the buyer, re- turning to him the money taken for liquor delivered ; it being written some days after the liquor was delivered, and no part of the res gestce, to which concomitance is essential, as also connection with the fact in question, either as inducement, or as a consequence naturally and necessarily resulting from it.^ A witness for the prosecution swears that he bought liquor no- where else than on defendant's premises on the day mentioned. The defence cannot contradict this, the fact being irrelevant, except for the purpose of showing that the liquor he bought was not defendant's, or else to show him to have been so drunk as to make his testimony unreliable." One count had been abandoned by the prosecuting attorney ; but defendant, in cross-examining a witness, introduced a sale under that count, which the witness swore to. He then offered to con- tradict him ; but this was not permitted, the matter being irrelevant to the issue to be tried.^ A., a witness for the pros- ecution, said that he went to buy liquor of defendant for the purpose of testifying, and that B. went with him, but only to 1 C. V. Packard, 7 Gray, 101 « C. u. Mahan, 11 Gray, 321 (1858). (185.5). « C. V. Williams, 4 Allen, 587 2 C. V. Hardiman, 9 Gray, 136 (1862). (1857). '' C. V. Fitzgerald, 2 Allen, 297 8 C. V. Taylor, 113 Mass. 4 (1873). (1861). ♦ .C. •). Snow, 14 Gray, 385 (I860). » C. u. Cain, 14 Gray, 7 (1859). Chap. I.] SALE OP LIQUORS. — EVIDBNOB FOR DBFEKOE. 399 get a drink. On cross-examination, A. denied that he had whistled to B. on coming out of the shop, and that he had ever so testified. It was held that this answer could not be contradicted; the fact being immaterial, as having no ten- dency to prove one theory more than the other,^ 1 C. V. Farrar, 10 Gray, 6 (1857). CHAPTER II. . COMMON SBLLEE. THE OPEBNCE. § 495. The statute. To prove defendant a common seller under Rev. Sts. c. 47, § 1 (Gen. Sts. c. 86, § 31), three dis- tinct sales are essential, though these are provable by circum- stantial evidence.^ By the statute three sales make, fer se, a common seller; they do not merely authorize the jury to find defendant to be a common seller.^ The charge is sustain- able whether the three sales were all on the same day or on different days.^ A common seller's ignorance of the intoxi- cating quality of the liquor he sells is no defence.* Where defendant furnished the liquor, but the person who was to pay for it was to be determined by the result of certain games to be played by defendant with three others, it was held that the offence was committed ; there being three distinct con- tracts of sale.^ The statute extends to a common seller of liqu^ors not manufactured by himself.® THE COMPLAINT OR INDICTMENT. § 496. When sufficient Under St. 1786 it was sufficient to charge defendant with being , a common seller, without specifying any particular sales.'' And so under St. 1862, c. 322, § 12 (Gen. Sts. c. 86, § 31) ; and if particular sales are defectively stated, they may be rejected as surplusage.^ Neither need any particular number of sales be specified.^ Under Rev. Sts. c. 47, § 1, a chai-ge that defendant was "a 1 C. V. Tubbs, 1 Cush. 2 (1848). « C. v. Bralley, 3 Gray, 456 (1854). 2 C. u. Kirk, 7 Gray, 496 (1856). ' C. v. Pray, 13 Pick. 359 (1832). » C. V. Perley, 2 Cush. 559 (1848). » C. v. Hart, 11 Cush. 130 (1853). * C. V. Boynton, 2 Allen, 160 (1861). » C. v. Wood, 4 Gray, 11 (1855). 6 0. V. Hogan, 97 Mass. 120 (1867). Chap. II.] COMMON SELLER. - THE COMPLAINT. 401 common seller of wine," &c., was held not too general. This form was deemed necessary and proper, as in prosecutions against a common barrator or a common scold. ^ And, under the same section, defendant need not be averred to be a vict- ualler or innliolder.2 That defendant was a common seller is virtually averred by a statement that on a certain day, and from then to the finding of the indictment, he was a seller of rum.^ Under the same statute it was held not necessary to aver that the liquors were " not in their original package," or to negative the clauses respecting cider, or the fruit of the vine for the Lord's Supper ; for these exceptions Avere no part of the enacting clause or of the description of the offence, but were only subsequent provisions ; * or to aver that they were intended for sale in Massachusetts ; ^ or that defendant was not town agent ; ^ or to negative any of the excepted cases in which the sale would be lawful.^ A complaint for being a common seller in a town in Massachusetts need not allege the liquors to have been in the State at the time of the sale.* " Without license, appointment, or authority first duly had and obtained according to law," sufficiently avers the want of authority to sell.^ And so does the following : " Was a com- mon seller without being duly authorized and appointed." ^^ Such an averment sufficiently alleges defendant to have no authority as town agent under St. 1852, c. 322, § 12 (Gen. Sts. c. 86, § 31).^^ " Common seller from a certain day (named), and from then continually to the day of making this presentment," is sufficiently certain ; ^^ the law implying the finding of an indictment to be on the first day of the term.^^ Under St. 1786, a complaint against a "common re- tailer of spirits without license need not allege them to have been sold in a less quantity than twenty-eight gallons.^* It 1 C. V. Oaiin, 23 Pick. 275 (1839). 8 Q. „. Jones, 7 Gray, 415 (1856). 2 C. V. Pearson, 3 Met. 449 (1842). " C. ■/. Wilson, 11 Cash. 412 (1853). 3 C. V. Leonard, 8 Met. 529 (1§44). i° C.v. Kendall, 12 Cush. 414 (1853). * C. V. Hart, 11 Cush. 130 (1853). " C. t>. Murphy, 2 Gray, 510 (1854). « C. „. Edwards, 12 Cush.187 (1853), i^ Q. v. Snow, 14 Gray, 20 (1859). 6 C. V. Tattle, 12 Cush. 502 (1853). « C. ./. Wood, 4 Gray, 11 (1855). ' Ibid. " C. V. Eaton, 9 Pick. 165 (1829). 402 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V. need not be averred to what town the penalty will go ; this being no part of the judgment.^ Under the same statute? § 12 (Gen. Sts. c. 86, § 31), the penalty going to the Com- monwealth, it need not be alleged that the indictment was found at the instance of any town, or for the benefit of any town. It is not a case where a penalty is given to an in- former ; in which case the information must name him.^ And it need not be averred that no action had been brought for the same penalties by any city or town ; for this would be matter of defence.^ § 497. When not sufficient. " Common seller October 1, and divers days since," is insufficient. The proof would be confined to October 1, because the remainder is no defined period of time.* So as to " common seller April 3, within sis months past." ^ So as "to finding and filing of this in- dictment," for this is uncertain.^ § 498. Joinder of defendants, and of counts. Two or more may be jointly guilty of being common sellers without license, and so may be jointly indicted under the statute.'^ Of two defendants jointly indicted as common sellers in a build- ing " used by them as a shop," one may be convicted alone. In criminal, as well as in civil cases, tortfeasors are liable severally as well as jointly.^ " Were common sellers, &c., to be used in their dwelling-house, without being first licensed." The latter clause was construed to negative a license to de- fendants jointly, or to either of them.^ A count of common seller may be joined with counts for distinct sales. In the joinder of ofEences great latitude is al- lowed. It is in the discretion of the judge to allow separate trials. The evidence will be applied to the proper count, and the verdict also.^" By St. 1861, c. 181, two or more counts founded on the same transaction, and describing different of- l C. V. Tuttle, 12 Cush. 502 (1853). ^ c. v. Wood, 4 Gray, 11 (1855). ■■' C. V. Baker, 2 Gray, 78 (1854). '' C.v. Tower, 8 Met. 527 (1844). 8 C. V. Murphy, 2 Gray, 510 (1854). « C. v. Brown, 12 Gray, 135 (1858). * C. V. Gardner, 7 Gray, 494 (1856). « C. v. Tower, 8 Met. 527 (1844). 6 C. V. Traverse, 11 Allen, 260 i" C. v. Moorhouse, 1 Gray, 470 (1865). (1854). Chap. II.] COMMON SELLER. — THE EVIDENCE. 403 fences are allowed, provided it be averred that the different counts are different descriptions of the same act. In C. v. G-illon, 2 Allen, 505 (1861), it was held that two counts charging single sales on April 1 might be joined with one of common seller from January to May of the same year, without averring them to be different descriptions of one act. There being nothing in the indictment to show that the grand jury took into consideration under the count of common seller any evidence of the single sales charged in the other two counts, it was presumed that the offences were different, and judg- ment was affirmed. THE EVIDENCE. § 499. What evidence admissible. Implements and fixt- ures found on defendant's premises are always admissible in evidence against him ; as a counter, and a pitcher " of some- thing like beer," and a pump " which looked like a beer pump ; " 1 bottles seen in a room containing a bar, and called the bar-room ; ^ and a bar, a decanter and glasses, and casks of liquor in a cellar adjoining.^ So as to people coming and going with demijohns to and from a shop having defendant's name upon it.* So as to evidence tending to show defendant's relation to the premises. Thus, to show defendant to have been the owner or occupier of a house in which sales had been proved to have been made, evidence was held admissible of his state- ment a year before of his having repaired it.^ A witness's ex- pressions of " Dow's Hotel," and of " his place," were held admissible so far as they were intended by him as a statement respecting the proprietorship.^ After proving sales in a cer- tain house, the prosecution may ask a witness whether he ever knew defendant to live in any other house ; ^ and it may be proved that persons had drunk liquor in defendant's house ; and that defendant had been seen in all the lower rooms.^ 1 C. «.. Lamere, 11 Gray, 319 (1858). « C. v. Hildreth, 11 Gray 327 (1858). 2 C. V. Boyden, 14 Gray, 101 (1859). 6 c. v. Dow, 12 Gray, 133 (1858). 8 C. 0. Whalen, 16 Gray, 23 (I860). ' C. v. Boyden, 14 Gray, 101 (1859). * C. V. Maloney, 16 Gray, 20 (I860). " Ibid. 404 OFFENCES UNDER THE LIQUOR LAWS. [Part V. St. 1844, c. 102, throwing the onus on defendant of proving that he had authority to sell, was repealed by Gen. Sts. p. 886. This revived the common law rule which requires the prose- cution to prove a want of authority. It is true that Gen. Sts. c. 172, § 10, provided that, in all criminal prosecutions, a de- fendant relying upon any "written." authority or license must prove it. But, by Gen. Sts. c. 86, §§ 25-27, liquors might be sold in some cases without any "written" author- ity ; as by importers in the original casks or packages, drug- gists in sales of alcohol, or in the case of cider sold for any other purpose than a beverage, or of wine sold for sacramental purposes. It was therefore held that this statute was not applicable to the case in question, and that it was incumbent on the prosecution to prove the want of authority to sell ; though such authority would be sufficiently negatived if the evidence showed the sale to have been unlawful.^ But Gen. Sts. c. 172, § 10, has been since repealed by St. 1864, c. 121, which provides that in all criminal prosecutions in which the defendant relies upon any license, appointment, or authority, he shall prove the "same. Under a charge of being a common seller " Oct. 1 and divers days since," the proof must be confined to Oct. 1, because the remainder constitutes no defined period of time.^ So, under a charge that defendant was a common seller " April 3, 1865, within six mouths past," the proof was con- fined to April 3.^ The prosecution may introduce evidence of sales of which there was no evidence before the grand jury ; the issue being, not as to any particular sales, but whether defendant was a " common seller^" * § 500. What is not admissible. Being a common seller is a continuous offence, and under a charge of being such on a certain specified day and on divers subsequent days, evi- dence of sales before the day specified is inadmissible, though 1 C. V. Bivermore, 2 Allen, 292 » C. v. Traverse, 11 Allen, 260 (1861). ' (1865). 2 C. V. Gardner, 7 Gray, 494 (1856). * C. v. Phelps, 11 Gray, 73 (1858). Chap. II.] COMMON SELLER. — THE EVIDENCE. 405 within the statute of limitations ; ^ and under a charge of being a common seller on a certain day, no evidence of sales on other days is admissible. The offence implies a period, and the evidence must be confined to the period charged.^ When defendant has been furnished, by an order of court, with a list of persons sales to whom are to be proved, evidence of sales to other persons is inadmissible.^ Evidence of defend- ant's merely keeping an inn is irrelevant. It is a lawful busi- ness, and does not tend to show that defendant has violated the laws. The presumption is not that men break the laws, but that they obey them.* § 501. What evidence is sufficient. Since St. 1864, c. 121, the burden of proof of defendant's want of authority is no longer on the prosecution. But where, the trial having taken place before this statute was passed, the judge erro- neously ruled to the contrary, the judgment was affirmed, because there was proof of liquor sales by the glass to be drunk on the premises, for which there could be no legal au- thority; and thus defendant was not prejudiced.^ Proof of defendant's being a common seller during any part of the period charged is sufficient.^ The statutory provision that a delivery not in a dwelling-house shall be primd facie proof of sale applies to the offence of being a common seller.^ Though the jury may properly be instructed that a delivery in defend- ant's kitchen is not primd facie proof of a sale, no payment being proved, this might be so if they found the kitchen to be a place of common resort.^ Evidence of sales of fermented liquor supports an averment of three sales of fermented liq- uor, "being sales of spirituous and intoxicating liquor."* The offence of common seller is provable by evidence of sales to three persons, delivered at intervals.^" Where the sole evi- 1 C. V. Briggs, 11 Met. 573 (1846). ^ C. v. Pillsbuiy, 12 Gray, 127 2 C. V. Elwell, 1 Gray, 463 (1854). (1858). = C.!J. Giles, 1 Gray, 4.56 (1854). « C. v. Leighton, 7 Allen, 528 4 C. V. Madden, 1 Gray, 486 (1854). (1863). « C. V. Cashman, 8 Allen, 580 9 C. v. Giles, 1 Gray, 466 (1854). (1864). 1" C. 0. Graves, 97 Mass. 114 (1867). 6 C.v. Wood, 4 Gray, 11 (1855). 406 OFFENCES UNDER THE LIQUOR LAWS. [Paet V. dence of the sales was the testimony of three state constables who went for the express purpose of getting defendant to sell to them, in order to obtain his conviction, it was held suffi- cient. ^ (In other words, the State may lawfully punish an offence committed by the deliberate procurement of its own officers. Such a decision has nothing to rest upon but the Jesuitical doctrine that it is lawful to do evil that good may come.) § 502. Three sales. Three separate sales within the pe- riod charged, or on the day named, suffice to prove the offence .of common seller ;2 and if three several sales are proved, the jury are bound to convict of the offence of common seller under St. 1855, c. 215, § 17 (Gen. Sts. c. 87, § 31).3 The three sales need not be proved specifically. It is sufficient if the jury is satisfied, from all the circumstances in evidence, that there have been as many as three sales.* Evidence of a bar, bottles of liquors, tumblers, &c., might be sufficient on this point.^ Three or more sales at defendant's tavern, " to be drunk on the premises," being manifestly unlawful, were held sufficient for conviction under Gen. Sts. c. 172, § 10, and before St. 1864, c. 121, without direct proof that the buyers were not druggists.® Where the indictment was found in February term, 1856, a charge of being a common seller from July 1, 1855, till the finding of the indictment, was held to be supported by proof of three sales on August 27, 1855. It was further held that the conviction would bar an indictment for any other sales during the period stated.'' § 503. When evidence insuflaoient. The jury must be satisfied there were three distinct sales; the mere fact of de- fendant's being in the business is not sufficient per se? Where 1 C. V. Graves, 97 Mass. 114 (1867). ' C. v. Mahoney, 14 Gray, 46 (1859). 2 C. i). Rumrill, 1 Gray, 388 (1854); ^C v. Livermore, 4 Allen, 434 C. u. Lamere, 11 Gray, 319 (1858). (1862). 8 0. i>. Barker, 14 Gray, 412 (1860). ' C. u. Armstrong, 7 Gray, 49 ♦ C. u. Whalen, 16 Gray, 23 (1860) ; (1856). C. V. Dady, 7 Allen, 531 (1863) ; C.v. » C. v. Clark, 14 Gray, 367 (1860). Cotter, 97 Mass. 336 (1867) ; C. v. Van Stone, Ibid. 548. Chap. II.] COMMON SELLER. — EVIDENCE FOE DEFENCE. 407 the charge was " common seller of spirituous and intoxicating liquor," it was held that the liquor must be proved to be both spirituous and intoxicating. To interpolate the word "liq- uor " after " spirituous " would give judicial sanction to an elliptical form of allegation not warranted by the rules of pleading or by precedent. A charge of stealing " a black and white horse " would not be sustainable by proof of the steal- ing either of a black horse or of a white one.-' § 504. Evidence for defence. Under St. 1855, c. 215, § 1 (Gen. Sts. c. 86, § 2), evidence is inadmissible to prove that the lager-beer sold was not intoxicating.^ A witness for defendant having testified that he himself had taken and paid for a lease of the premises, and had bought the spirits of de- fendant, ^nd that one Flanders, formerly defendant's clerk, who was proved to have made the sales, made them as his, the witness's agent, it was held that defendant might ask if" his transfer to the witness was bond fide, or only colorable.^ After evidence of actual sales, evidence of defendant's refu- sals at other times to sell liquor is not admissible, it having no tendency to rebut the evidence of actual sales.* 1 C. V. Livermore, 4 Gray, 18 (1855). s C. v. Kimball, 24 Pick. 366 (1837). " C. u. Bubser, 14 Gray, 83 (1859). * C. v. Barlow, 97 Mass. 597 (1867). CHAPTER III. EXPOSING AND KEEPING LIQtTOES FOE SALE. THE OFFENCE. § 505. The statute. A defendant may be convicted under Gen. Sts. c. 86, § 34, of keeping liquor for sale, though with- out knowledge of its being intoxicating.^ Under St. 1869, c. 415, §§ 31, 36, it is sufficient if defendant " own, possess, or Jkeep." 2 Under St. 1875, c. 99, there must be an exposing of the liquors to those who might become purchasers. If de- posited where their presence cannot be known to the public, they are not " exposed to sale " within the statute.^ It is in- different where in the Commonwealth defendant intended to sell.* THE COMPLAINT OE INDICTMENT. § 506. Want of authority. Under St. 1855, c. 215, § 24 (Gen. Sts. c. 86, § 34), it is sufficient to aver that defendant kept the liquors " with intent to sell, he not being author- ized to sell." ^ " And without any license " sufficiently nega- tives authority under any provision of St. 1855, c. 215.^ It need not be alleged that the liquors were not in their original package. This is implied in an averment that defendant was not authorized to sell in this Commonwealth " for any pur- pose, or by any legal authority whatever." ^ § 507. Other points. The kind of liquors kept need not be specified.^ " Kept intoxicating liquor, with intent to sell 1 C. V. Goodman, 97 Mass. 117 * C. v. Purtle, 11 Gray, 78 (1858). (1867). 6 c. V. Gilland, 9 Gray, 3 (1857). ^ C. V. O'Reilly, 116 Mass. 15 « C. v. Dunn, 14 Gray, 40 {I860). (1874). ' C. V. Purtle, 11 Gray, 78 (1858). 8 C. i^. McCue, 121 Mass. 358 (1876). » C. ■/. Timothy, 8 Gray, 480 (1857). Chap. III.] KEEPING FOE SALE. — THE EVIDENCE. 409 without any legal authority -whatever," sufficiently excludes an implication that the liquors were of a kind allowed to be sold under St. 1870, c. 389.1 gt. 1370, c. 389, § 2, author- ized the keeping for sale of malt intoxicating liquors. Sec. 3 authorized any town by vote to prohibit the sale of such liq- uors within its limits. A complaint under St. 1869, c. 415, § 36, charged defendant with " keeping intoxicating liquors with intent unlawfully to sell the same in this Common- wealth." It was contended for the defence, that inasmuch as it did not appear that the liquors in question were not malt liquors, the complaint did not charge what was necessarily an offence ; that by St. 1870, c. 389, the keeping of malt liquors was made lawful, except in a contingency provided for in "a subsequent section ; and that the defect was not supplied by the use of the word " unlawfully," which is merely argu- mentative. But the objection was overruled and the judg- ment affirmed.^ (A more satisfactory ground for this deci- sion would have been the provision in § 8 of the statute, "nor shall anything in this act be construed to require any change in the forms of pleading now or heretofore used in the trials of criminal causes.") Under St. 1875, c. 99, " did expose and keep for sale intoxicating liquors," charges but one of- fence.^ A complaint under this statute is sufficient that charges that defendant " unlawfully exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the samerti'n this Commonwealth, having no license, authority, or appointment according to law to expose, keep for sale, or sell such liquor, contra formam statuti." * THE EVIDENCE. § 508. What evidence is admissible. In a trial under St. 1855, c. 215, § 3 (Gen. Sts. c. 86, § 29), for unlawfully keeping with intent to sell, jugs found in defendant's house may be produced in evidence;^ and labels on jugs may be 1 C.K. Lynn, 107 Mas-s. 214 (1871). « C. v. Hanley, 121 Mass. 377 2 C. i<. Grady, 108 Mass. 412 (1871). (1876). 8 C. V. Cm-ran, 119 Mass. 206 (1875). « C. v. Timothy, 8 Gray, 480 (1857). 410 OFFBliTCBS UNDER THE LIQUOR LAWS. [Part V. testified to without their being produced, or their absence ac- counted for.i The finding of ale and of an ale pump on de- fendant's premises is admissible in evidence.^ Evidence of the condition of the room as to fixtures, &c., at 8 A. M., is competent, as tending to show its condition the day before.^ Evidence is competent of defendant's conduct and deport- ment, in connection with other facts.* The fact that de- canters found on the premises are proved to contain only col- ored water does not make evidence of them incompetent.^ On a trial for keeping beer, where a witness testified that he had seized a bottle of it, had corked, sealed, and labelled it, and sent it in a box with other samples to an assayer in Bos- ton, and the assayer proved his receipt of such a bottle, this was deemed to be sufficient evidence of the identity of the bottle.^ In the same case, the assayer's testimony that the beer found in the bottle was intoxicating was held admissible in evidence, although the beer had not been sent to him until six weeks or more after the seizure, and there was no evi- dence as to the stage of fermentation at the time of the seiz- ure.'^ (Such a ruling seems opposed to the general principles of the law of evidence.) A chemical analysis of beer sold by another person than defendant, but proved to be similar to defendant's beer in appearance, strength, and flavor, was held to be admissible.^ (This ruling also it would seem to be dif- ficult to support.) Evidence is admissible that defendant had intoxicating liquor concealed in out-buildings adjt^ung his tavern, and had tried to deceive the witness as to the fact.^ So also as to the seizure of liquor on the premises three weeks before the day alleged.^" So as to liquors found concealed in a kitchen connected with defendant's oyster sa- loon and bar, and as to persons seen coming out of the saloon 1 C. u. Blood, U Gray, 74 (1858). « C. v. Bentley, 97 Mass. 551 (1867). 2 C. V. Doe, 108 Mass. 418 (1872). ' Ibid. = C. V. Powers, 123 Mass. 244 » C. t. Graves, 97 Mass. 114 (1867). (1877). » C. V. Doe, 108 Mass. 418 (1871). ^ C. V. Wallace, 123 Mass. 400 i" C. v. Stacker, 109 Mass. 365 (1877). (1872). 6 C. V. Blood, 11 Gray, 74 (1858). Chap. III.] KEEPHiTG FOR SALE. — THE EVIDENCE. 411 apparently intoxicated.-' A witness who went with a search- warrant may be asked whSre he went in the house, though defendant was not present.^ The prosecution was allowed to give oral evidence of the United States stamp found on a keg of beer that had been seized, bearing date " Aug. 17, 1893," without producing it ; it being like the case of tags or labels, admitted as part of the description to identify the article.^ Where the defence was that defendant did not sell the liquor, but gave it away to his friends, it was held that the jury might take into consideration that none of these friends were called to corroborate defendant's testimony.* § 509. Defendant's relation to the premises. To show defendant's connection with the premises, evidence is admissi- ble of his having been seen a month previously in the same bar-room, coming out of a room with a bottle of intoxicating liquor in his hand, while men were drinking at the bar." So as to defendant's ownership six months previously ; this hav- ing some tendency to prove that he was the owner still ; so as to his having been seen in the shop during that period with his hat and coat off ; and so as to sales of liquor there prior to the day alleged in the complaint.^ A defendant, charged with keeping liquor for sale at a certain bar on April 17, 1874, having sworn that he had had nothing to do with the bar since March, 1874, evidence was held admissible for the prosecution of his having delivered liquor there on May 16, 1874 ; not as tending to prove he kept liquor there on April 17, but only as affecting his credibility.^ (But, semble, if the evidence in question did not tend to prove defendant's commission of the offence charged, it was on a fact collateral to the issue, as to which evidence in contradiction is not ad- missible.) § 510. Evidence, -when sufficient. Proof of defendant's possession of the liquor, and a keeping of it for a short time, 1 C. u. Berry, 109 Mass. 366 (1872). 6 c. v. Haher, 113 Mass. 207 (1873). 2 C.w. Blood, 11 Gray, 74 (1858). ^ C. v. Dearborn, 109 Mass. 368 « C. V. Powers, 116 Mass. 337 (1874). (1872). » C. V. CammingB, 121 Mass. 63 ' C. v. Mason, 116 Mass. 66 (1874). (1876). 412 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V. coupled with proof of sale on a single occasion, is sufficient for conviction. The possession need" not be shown to be continu- ous.i Though no proof was given at the trial that the prem- ises were in Boston, as alleged, after verdict the jury were presumed to be satisfied of the fact from the circumstances of the case.^ Though an intent to sell on a particular day be alleged, it need not be proved. Time is not of the essence of this offence. It is different from the offence of common seller, which implies a habit, a continuance of acts.^ If merely an intent to sell be proved, though the law requires an intent to sell within the Commonwealth, there is no legal presump- tion that defendant intended to sell outside of the Common- wealth any more than within it.* Under St. 1871, c. 334, authorizing towns to permit the sale of ale, the burden of proof of authority to sell is on defendant.^ Under St. 1875, c. 99, the onus of proving authority to expose and keep for sale is on defendant.^ No overt act of offering for sale need be proved. But there must be an exposing of the liquor to those who might become purchasers. If deposited where its presence cannot be known to the public, it is not exposed to sale within the statute.'^ In 0. V. Shaw, 116 Mass. 8 (1874), as. also in 0. v. Wallace, 123 Mass. 401 (1877), certain evidence was held sufficient to warrant a conviction. § 511. When not sufficient. The mere possession of liquor, apart from any circumstance tending to show it to be kept for sale, affords no presumption of unlawful intent.^ Where the charge was keeping for sale on Sept. 10, 1870, and the pfoof was of a keeping on Sept. 10, 1872, the variance was held fatal, for the reason that between these two dates the penalty for the offence had been increased.^ Where the only evidence was that defendant was the occupant of the 1 C. «. Cleary, 105 Mass. 384 (1870). ^ Q. v. Curran, 119 Mass. 206 2 C. u. Dearborn, 109 Mass. 368 (1875). (1872). ' C. V. McCue, 121 Mass. 358 (1876). 8 C. u. Carr, HI Mass. 423 (1873). » C. v. Hayes, 114 Mass. 282 (1873). * C. V. Blood, 11 Gray, 74 (1858). ' C. v. Maloney, 112 Mass. 283 » C. 0. Leo, 110 Mass. 414 (1872). (1873). Chap. III.] KEEPING FOB SALE. — EVIDENCE FOR DEFENCE. 413 premises, and that his servants sold liquor there, this was held insuflBcient to convict unless accompanied by proper instruc- tions to the jury as to the efEect of sales by servants.^ Evi- dence of a single sale at a public house is not sufficient to prove an exposing and keeping for sale.^ § 512. Evidence for defence. Where the prosecution had introduced evidence of drainers being found on defendant's premises, and of their being usual implements in the sale of liquors, defendant was allowed to rebut by proving his in- structions to the maker of them at the time they were made, showing an innocent purpose ; as part of the res gestcB? 1 C.U.Dunbar, 9 Gray. 298 (1857). = C. v. O'Connor, 11 Gray, 94 2 C. V. Hoar, 121 Mass. 375 (1876). (1858). CHAPTER IV, KEEPING A TENEMENT USED FOE THE ILLEGAL KEEPING OE SALE OF INTOXICATING LIQUOES. THE OFFENCE. § 513. The statute. Gen. Sts. c. 87, §§ 6, 7, prohibiting the keeping of a liquor nuisance, is constitutional ; ^ and so is St. 1869, c. 191, annulling all liquor licenses from and after April 30, 1869. A license is not a contract.^ Gen. Sts. c. 87, §§ 6, 7, was not repealed by St. 1868, ce. 141, 311.^ Under Gen. Sts. c. 87, § 6, defendant is liable if he keep a tenement used for the illegal keeping, as well as for the illegal sale of liquors.* A keeping for two hours suffices ; ^ and the statute may be violated by such use on a single occa- sion.® A defendant had sold beer in Hopkinton, where the sale of beer was legalized; but it was on Sunday. Held, that this sufficed for conyiction ; for the sale, being on the Lord's Day, was illegal.'' (But how illegal ? Only as a violation of the Lord's Day, and defendant was not on trial for that. To be punished for that offence he should have been indicted for it. On a subsequent indictment for a violation of the Lord's Day, the record would not have protected him ; for it would have shown a conviction of a different offence.) A certificate from a United States revenue officer is no defence.^ In a pros- ecution for keeping a liquor nuisance under Gen. Sts. c. 87, §§ 6, 7, it is not material whether the liquor was intended to" 1 C. V. Owena, 114 Mass. 257 (1853). « C. v. Gallagher, 1 Allen, 592 2 C. u. Brennan, 103 Mass. 70 (1861). (1869). , 6 C. w. Cogan, 107 Mass. 212 (1871). ' C. V. Carpenter, 100 Mass. 204 ' C. u. McCurdy, 109 Mass. 364 (1868). (1872). * C.«. Carolln, 2 Allen, 169 (1861). » C. v. McNamee, 113 Mass. 12 (1873). Chap. IV.] TENEMENT USED FOB SALE, ETC. — AGENTS. 415 be sold in the building where it was found, or was only de- posited there. 1 § 514. The locality. Keeping liquors under a floor is within the statute ; ^ and a defendant using the cellar of his house for the sale of liquors is liable under a charge of " keep- ing a tenement, to wit, a tenement in a building " for the un- lawful purpose.^ But " keeping a building " does not apply to one of several tenements in a building;* yet where a whole building is occupied by defendant, it is within the statute, though the sale was only in a part of it.^ A building consisting of one room only may be called a shop. The of- fence may be committed by keeping a grocer's shop, and twice selling liquor in an^djoining room.^ A shop is a "tenement" for keeping liquors for sale, under the statute.'^ Proof of the illegal use of any part of a tenement consisting of several rooms is suflicient to convict.^ But though the charge would be sustained by proof of defendant's occupying the whole building, using only a portion of it for the illegal sale, it would not be where defendant occupies only a part of the building, the indictment using the word " tenement " only as synonymous with building? § 515. Agents. Husband and wife. A clerk or agent, with or without compensation, or any one having control or superintendence for any portion of time, and assisting in the commission of the offence, though having no ownership or in- terest, is equally liable with the proprietor. In misdemeanors all persons participating in them knowingly and intentionally are indictable as principals.^" So a bar-tender is within the statute, though neither owner nor lessee, and having no pe- cuniary interest in the profits. ^^ 1 C. V. McCIusky, 123 Mass. 401 « C. v. Howe, 13 Gray, 26 (1859). (1877). 9 C. V. Bossidy, 112 Mass. 277 2 C. V. Welsh, 110 Mass. 359 (1872). (1873). » C.K.Welch, 2 Allen, 510 (1861). i» C. v. Kimball, 105 Mass. 465 4 C. V. McCaughey, 9 Gray, 296 (1870); C. «: Burke, 114 Mass. 261 (1857). (1873). ' C. i>. Godby, 11 Gray, 454 (1858). 'i C. v. Cowling, 114 Mass. 259 « Ibid. (1873). ' C. V. Cogan, 107 Mass. 212 (1871)- 416 OFFENCES UNDER THE LIQUOK LAWS. [Pakt V. It has been held to be no defence that the tenement was kept by defendant's wife, who had filed a married woman's certificate under St. 1862, c. 198, for carrying on business on her own account, and had a United States license as liquor dealer in her own name; the defendant knowing of the sales, but using no reasonable means to prevent them, though he had no agency in the sales and had forbade her to make them. It was held that notwithstanding the statute respect- ing married women, the law assumes the husband to have power to control his own household, and to prevent the use of his house for an illegal purpose. On his failure to do so the law considers him a partieips criminis.^ A similar decision was made on this ground in another case where the husband defendant had no ownership or interest in the business or in the profits, and on the further ground that the premises were held under a deed to the husband and wife jointly ; so that both were seised of the entirety, and the husband was entitled during coverture to the rents and profits.^ A husband and wife are jointly punishable for keeping a liquor nuisance. Her selling in his absence suffices for her conviction .3 THE COMPLAINT OR INDICTMENT. § 516. When sufficient. The complaint may simply use the words of the statute, without particularly charging the sales.* A charge that defendant " kept a common nuisance, to wit, a certain tenement (describing it), for the sale of in- toxicating liquors," &c., sufficiently shows the tenement to be a nuisance, and need not conclude " to the common nuisance of all the citizens."^ A charge in either of the following forms is sufficient: That defendant, at a certain time and place, " a certain tenement used for the illegal keeping and illegal sale, &c., knowingly and unlawfully did keep ;" ^ " keep- 1 C. V. Barry, 115 Mass. 146 (1874); * C. v. KeUy, 12 Gray, 175 (1858). C. I). Kennedy, 119 Mass. 211 (1375). ' C. v. Howe, 13 Gray, 26 (1859). 2C.U. Kenuedy,119 Mass. 2U (1875). ^C. v. Davenport, 2 Allen, 299 8 C. V. Tryon, 99 Mass. 442 (1868). (1861). CHiP. IV.] KEEPING TENEMENT, ETC. — THE COMPLAINT. 417 ing a tenement used for the illegal sale and illegal keeping of intoxicating liquors," without other description of the liquors, or an averment that they were not such as it was lawful to sell ; ^ and such a charge is sufficient without stating that the building was used by defendant ; the keeping being the of- fence.2 § 517. Want of authority, and other points. " Used for the illegal sale and keeping of intoxicating liquors," without more, sufficiently negatives any authority to keep or sell.^ The words "without authority " sufficiently negative an au- thority under the vote of any town.* It was not necessary that the complaint should negative that the liquors mentioned were not ale or beer during the period that the sale of these liquors was lawful.^ Since St. 1875, c. 99, regulating the sales of liquor, and requiring no license for the sale of cider, or of native wines by the maker, not to be drunk on the premises, a complaint under Gen. Sts. c. 87, § 6, need not negative these exceptions.^ In a complaint for a nuisance, " to wit, a tenement for the illegal keeping and illegal sale of intoxicat- ing liquors," the name of the town sufficiently states the lo- cality.'' " Kept a building, &c., on the 1st of March, and divers other days from then to the finding of the indictment," sufficiently charges a continuing offence.^ But, with respect to a continuing offence, from a day named " to the finding of the indictment and presentment to the court," is an insuf- ficient statement of the time. The finding and the present- ment mean the same thing, but the finding and " present- ment to the court " may have been on different days.^ 1 C. II. Conneally, 108 Mass. 480 " C. r. Shea, 115 Mass. 102 (1874); (1871). C. V. Kennedy, 108 Mass. 292 (1871). 2 C. V. Sampson, 113 Mass. 191 s q. „. Costello, 113 Mass. 454 (1873). (1873). » C.U.Kimball, 7 Gray, 328 (1856); 7 C. v. Gallagher, 1 Allen, 592 C. I-. Edds, UGray, 406 (1860); C. t>. (1861); C. v. Logan, 12 Gray, 136 Bennett, 108 Mass. 27 (1871). (1858). * C. V. Dunn, 111 Mass. 425 (1873). » C. v. Hoye, 9 Gray, 292 (1857). C. V. Keefe, 9 Gray, 290 (1857). 27 418 OFFENCES UNDER THE LIQUOK LAWS. [Paet V. THE EVIDENCE. § 518. "What evidenfee is admissible. Evidence is com- petent of defendant's having kept the premises during a cer- tain time when they were not used unlawfully, in connection with an unlawful keeping from one to eight weeks previously, as presumptive evidence, in the absence of proof of any appar- ent change in the occupancy ; ^ and where the charge was the keeping of a nuisance from June 1 to October 19, 1873, evi- dence was held admissible of a sale of liquor there by defend- ant on April 4 preceding, in connection with other evidence, on the question whether defendant kept the house during the time alleged.^ So, on a charge of keeping a nuisance May 1, 1875, and subsequently, evidence was held admissible of de- fendant's admission of a certain card as hers, printed some seven months before May 1, 1875, advertising her keeping of liquors for sale.^ Evidence is admissible of a record of conviction on defend- ant's plea of guilty in the Municipal Court of keeping a shop open" on the Lord's Day, at a time covered by the charge of keeping the same tenement for the illegal sale of intoxicating liquors, to show his keeping of it during the time alleged.* So, also, is a record of defendant's conviction on his plea of guilty of a sale of liquor at a certain time within the period charged, in connection with proof of the identity of the tenement.^ Parol evidence is admissible of tags on kegs found on the premises, bearing defendant's initials, as tending to prove, in connection with other evidence, his continuing to keep the tenement;^ as, also, of marks upon liquor barrels, with de- fendant's initials, arriving at a depot and carried off to the premises described in the charge ; "^ and the admission of a wit- ness's statement that " he supposed J. T. & Co., on them, 1 C. V. Carney, 108 Mass. 417 ^ C. v. Hazeltine, 108 Mass. 479 (1871). (1871). 2 C. u. Kelly, 116 Mass. 341 (1874). ^ c. „. Jennings, 107 Mass. 488 = C. V. Twombly, 119 Mass. 104 (1871). (1875). ' Ibid. * C. 0. Ayers, 115 Mass. 137 (1874). Chap. IV.] KEEPING A TENEMENT, ETC.— THE EVIDENCE. 419 meant John Tracy & Co., of Albany," noted liquor dealers, was held to be no ground for a new trial.^ The same evidence that tends to prove sales of liquors, tends also to prove the keeping of them for sale in the same tenement ; ^ and repeated sales and delivery by defendant in her house, to be drunk on the premises, is admissible to show that she herself kept the house for the sale and keeping of intoxicating liquors.^ Evi- dence is admissible of defendant's keeping a hotel, and of liquors being found concealed in it, as tending to prove the statutory offence.* That a waiter carried wine from the bar to the dining-room and brought back money is competent evi- dence of a sale, without other proof of payment, or of a prom- ise to pay.^ Defendant's premises being fitted up with the usual liquor paraphernalia is a fact admissible in evidence, but of less sig- nificance when the law authorizes the sale of malt liquors.^ Evidence is admissible of sales of beer which all the witnesses said was n6t, in their opinion, intoxicating, persons being seen to go in and out drunk.' After evidence of defendant keep- ing an open bar in a room and of sales of liquor there, evi- dence was held admissible of persons being seen to enter the room and to come out drunk, though there were other tene- ments adjoining, to which there was a separate entrance, and it was not shown whether or not there was a connection be- tween them and defendant's, or whether liquor was kept in the other tenements.^ Under a charge of keeping a tenement, &c., on July 1, 1872, and on divers other days between that day and May 1, 1873, evidence was held admissible of what was found on defendant's place July 2, 1872, and on other days till May 1, 1873.^ The statute making a delivery else- where than in a dwelling-house primd facie proof does not 1 C. V. Jennings, 107 Mass. 488 ^ C. v. Reichart, 108 Mass. 482 (1871). (1871). 2 C. o. Aarpn, 114 Mass. 255 (1873). 6 C. u. Cogan, 107 Mass. 212 (1871). 3 C. V. Kennedy, 108 Mass. 292 ' C. v. Tajlor, 14 Gray, 26 (1859). (1871). ^ C. u. Kennedy, 97 Mass. 224 * C. w.- Welsh, 110 Mass. 359 (1872). (1867). 9 C. V. Connors, 116 Mass. 35 (1874). 420 OFFENCES UNDER THE LIQUOK LAWS. [Paet V, preclude proof by circumstantial evidence. ^ Evidence is ad- missible of defendant's having said that he was going to sell, and of barrels having been taken to his premises, though with no proof of any marks or stamps upon them.^ After evidence of defendant's being often seen about the premises, the prose- cution may ask if the witness had seen him doing business any- where else.^ If the evidence shows that defendant kept the place, evidence is admissible of sales by other persons than defendant in his absence.* But where defendant was not the proprietor, evidence of sales in his absence are inadmissible against him.^ § 519. What evidence is sufficient. The charge is sup- ported by proof that defendant kept the tenement, and either kept intoxicating liquors there for sale, or illegally sold them there,^ as also by proof of unlawful sales by defendant there- in.-^ Repeated illegal sales in a tenement constitute sufficient proof of the tenement being used for the illegal keeping of liquors.^ A charge of keeping a tenement, &c., in the base- ment of a building is fully sustained by evidence of the keep- ing of a " saloon " in it, in which were a counter, a beer- pump, bottles and tumblers, some of which had lately had whiskey in them ; of liquors being found in the house above, and of defendant's admission that he had sold liquor.^ In Q. V. Haywood, 105 Mass. 187 (1870), certain evidence was held sufficient to justify a finding that the beer sold was intoxicat- ing. It need not be proved that defendant's exclusive busi- ness was the sale of liquor,^'' nor that the tenement was kept mainly for such sale.-"^! Proof that the tenement was kept and used for either of the purposes specified in the statute is 1 C. V. Campbell, 116 Mass. 32 6 c. u. Conneally, 108 Mass. 480 (1874). (1871). 2 C. V. Davenport, 2 Allen, 299 '' C. «. Farrand, 12 Gray, 177 (1858). (1861). 8 c. V. Greenen, 11 Allen, 241 « C. V. Mclvor, 117 Mass. 118 (1865). (1875). 9 C. V. Conneally, 108 Mass. 480 4 C. V. Edds, 14 Gray, 406 (1860). (1871). i> C. V. Burke, 114 Mass. 261 (1873). i" C. v. Locke, 114 Mass. 288 (1873). " C. V. Burke, 114 Mass. 261 (1873). Chap. IV.] KEEPING A TENEMENT, ETC. — THE EVIDENCE. 421 sufficient.^ In G. v. Crlennan, 116 Mass. 46 (1874), certain evidence was held sufficient to support a general verdict of guilty. In 0. V. Welsh, 1 Allen, 1 (1861), it was held that a charge of keeping a tenement " for the illegal sale and illegal keep- ing for sale of intoxicating liquors " was not sustained by proof of defendant's " keeping the place for the purpose of making illegal sales of intoxicating liquors." (It is not easy to comprehend the distinction here made ; but, however this may be, in the subsequent case of C. v. Haywood, 105 Mass. 187 (1870), this very evidence was held to suffice for convic- tion.) The charge is sustained by proof of defendant's occupying the whole building and using a part of it as a nuisance.^ Where defendant kept a saloon, with a bar and liquors, in a large block, and the liquors were proved to have been found in a cellar under the building, it was held sufficient, though there was no evidence of the saloon being connected with the cellar.^ Evidence that defendant's wife sold liquor on the premises is proof that they were kept by him ; and evidence of his cohabitation there with her is evidence of the marital relation.* Proof of the keeping during any part of the period charged is sufficient.^ To sustain a charge of keeping a nui- sance on April 22, 1873, "and on divers other days and times during the six months next before that date," proof of the keeping for one week is sufficient.^ In 0. v. Q-afley, 122 Mass. 334 (1877), the evidence, taken as a whole, was held sufficient to warrant the jury in finding the tenement to be illegally kept. And in 0. v. McOlusky, 123 Mass. 401 (1877), cer- tain evidence was held sufficient to warrant the jury in find- ing that a building adjoining defendant's liquor saloon had been used by him for the deposit of liquors sold in the saloon. The offence is a local one. Therefore proof of a keeping in Worcester will not sustain a charge of a keeping in Millbury.'^ 1 C.U.Welsh, 1 Allen, 1 (1861). 5 C. o. Mitchell, 115 Mass. 141 = C. V. Logan, 12 Gray, 136 (1858). (1874). » C. V. Pierce, 107 Mass. 487 (1871). « C. v. Locke, 114 Mass. 288 (1873). 4 C. V. Hurley, 14 Gray, 411 (1860). ' C. i,. Bacon, 108 Mass, 26 (1871). 422 OFFENCES UNDEK THE LIQUOR LAWS. [Part V. § 520. Evidence for defendant. Under St. 1869, c. 415, § 30, the sale of liquor not being illegal if not spirituous and not being ale, porter, strong beer, lager-beer, or -wine, unless intoxicating, evidence on that point was held admissible for the defence, though the liquor sold was proved to contain a certain percentage of alcohol.^ Where the defence was that the tenement was used for the compounding of " Sweet's Bit- ters," and the prosecution had given evidence to show that these were intoxicating, it was held that defendant might ask, on cross-examination, what proportion of intoxicating liquor they contained.2 Where the prosecution had proved that de- fendant had taken out a United States liquor license, he was allowed to prove his conversation with the United States assessor when obtaining it, for the purpose of showing the real object of the license ; not to prove an independent fact, but to rebut the presumption of an illegal purpose.^ Under St. 1844, c. 102, requiring the defendant to prove a license " in all prosecutions for selling spirituous or fermented liquors without license," it was held that this provision, being expressly limited to prosecutions for " selling " liquors, did not apply to an indictment for keeping a nuisance ; in which case, under the common law rule, the prosecution must prove the want of authority.* But under St. 1861, c. 121, the burden of showing that the town had voted to authorize the liquors in question to be sold is upon defendant.^ A witness for the prosecution had sworn that he bought the whiskey on purpose to testify against defendant. His testimony was contradicted by defendant's witnesses. The judge told the jury that, in his opinion, if the witness bought, honestly intending to aid in breaking up an illegal traffic, the weight of his evidence was not impaired ; but that the whole question was for the jury. It was held that this instruction was improper under Gen. Sts. c. 115, § 5, forbidding a charge " with respect to matters of fact." ^ 1 C. u. Bios, 116 Mass. 56 (1874). * C. o. Lahy, 8 Gray, 459 (1857). 2 C. V. Pease, 110 Mass. 412 (1872). " C. v. Dean, 110 Mass. 357 (1872). 8 C. V. Austin, 97 Mass. 595 (1867). = C'. v. Foran, 110 Mass. 179 (1872). CHAPTER V. TEANSPOETATION OP LIQUORS. THE OFFENCE. § 521. The statute. Under St. 1869, c. 415, § ST (Gen. Sts. c. 86, § 35), the offence is receiving spirituous or intoxi- cating liquor for transportation, and under § 39 (Gen. Sts. c. 86, § 37), it is conveying such liquor from place to place within the State. The term "from place to place" in § 39 (St. 1855, c. 215, § 20) refers to places within the same town, as well as to different towns.-^ It is no defence that the vendee, to whom defendant was carrying the liquor, had bought it in another city where it was lawful to sell it ; ^ or that the purchaser was authorized to sell.^ Under St. 1869, c. 415, § 37, if defendant was employed to deliver the liquor to any one who might purchase from him, the offence is com- plete on receiving it for such purpose.* The verdict must find that defendant had reasonable cause to believe that the liquor was intended to be sold.^ The fact that defendant was owner of the liquors he was conveying to J. S. would be no defence, if he had reasonable cause to believe that J. S. intended to sell them illegally to some one else.^ THE COMPLAINT OR INDICTMENT. § 522. When sufficient. Under St. 1869, c. 415, it is suflBcient to aver that the liquors " had been sold or intended for sale contrary to St. 1869, c. 415."^ An omission to neg- 1 C.K Waters, n Gray, 81 (1858). ^ q. „. jntox. L. 107 Mass. 386 2 C. t). McLaughlin, 108 Mass. 477 (1871). (1871). 6 c. u. McClusky, 116 Mass. 64 3 C. V. Locke, 114 Mass. 288 (1873). (1874). * Ibid. 7 0. V. Locke, 114 Mass. 288 (1873). 424 OFFENCES UNDER THE LIQUOR LAWS. [Fakt V. ative the purchaser's authority to make sales is only a for- mal defect, if a defect at all, and his name need not be given.^ The description of the vehicle is sufficient if it identify it in any way. Additional and unihtelligible description is only surplusage.^ " From place to place in W." is a sufficient al- legation.^ But "from place to place within the Commonwealth'.' is in- sufficient. It is not always sufficient to set out the offence in the words of the statute. There must be a reasonable degree of certainty as to the locality in which the offence is alleged to have been committed.* t THE EVIDENCE. § 623. What admissible for the prosecution. To show that defendant had reasonable cause to believe the liquors to be intended for sale, it may be proved that he had repeatedly carried to the same person quantities too great for his own use ; ^ so also that the liquor was sold at two places where defendant left it, one of them being a beer shop, though de- fendant saw no sales at either place ; ^ so also as to evidence that the premises to which the liquor was carried had been used for the illegal sale of liquor some four months before ; "^ so also that defendant had carried jugs of liquor at the same time to other persons ; ^ so also defendant's admission that his conduct was illegal ; but this merely to show defendant to have had reasonable cause to believe the sales to have been illegal, and not that they were illegal.^ § 524. Evidence for defence. On a trial for carrying liquors to A., evidence is not admissible for defendant of A.'s having been acquitted of a charge of keeping the same liq- uors with intent to sell them ; ^^ nor that defendant did not 1 C. V. Locke, 114 Mass. 288 (1873). » C. v. McLaughlin, 108 Mass. 477 2 0. V. Intox. L. 107 Mass. 386 (187l). (1871). ' C. V. Kenney, 115 Mass. 149 8 C. V. Hutchinson, 6 Allen, 595 (1874). (1863). ^ Ibid. » C. V. Eeily, 9 Gray, 1 (1857). » C. v. Locke, 114 Mass 288 (1873). 6 C. V. Commeskey, 13 Allen, 585 i" C. v. Waters, 11 Gray, 8 (1858). (1866). Chap. V.] TRANSPOETATION OF LIQUORS. 425 know whether the sale of liquor was authorized or not in the town to which he was carrying it.^ The burden of proving that the sale of liquor was illegal in the town to which defendant carried it is on the prosecution. By St. 1864, c. 121, § 1, it is true, a defendant relying for justification " upon any license, appointment, or authority," must prove it. But a defendant carrier's guilt or innocence does not depend upon whether the sale was or was not au- thorized by a vote of the town to which the liquor was carried, and he does not therefore belong to the class of defendants to which the statute applies. The offence charged against him is simply that of transporting the liquor " having reasonable cause to believe " that the sale of it was illegal ; and it is incumbent on the prosecution to prove not only that defend- ant had reasonable cause to believe the liquor he was carry- ing to a town was intended for sale there, but also that such sale was there illegal.^ 1 C. V. Babcock, 110 Mass. 107 (1872). "■ Ibid. CHAPTER VT. PLEA OP FOEMEE JUDGMENT IN LIQTJOE CASES. § 525. Autrefois convict. A conviction for keeping a tenement used for tlie illegal keeping and sale of intoxicating liquors is no bar to a second indictment as a common seller at the same time and place, these being two distinct offences ; ^ and though the proof of the facts be the same in both cases.^ Much less is a mere verdict of guilty.^ In G. v. Gain, 14 Gray, 9 (1859), it was held that, under the statutes, a defend- ant convicted as a common seller from April to September might be convicted at the same term, under a second indict- ment, for being a common seller from September to the find- ing of the indictment ; although it was contended that, inas- much as defendant's practice of selling was continuous from April to the finding of the second indictment, it constituted but one offence. It is no bar for a wife, indicted as a common seller, that her husband had been convicted of keeping a liquor nuisance on the same evidence;* though the jury should be satisfied that her offence was not committed under her hus- band's coercion.^ Where an indictment contained two counts : (1.) for being a common seller during a certain period ; (2.) for a single sale during the same period, it was he'ld that de- fendant might be tried on the first count, though he had pleaded guilty to the second. A plea of guilty is never a bar ; not even a verdict. If defendant should be found guilty on 1 C. V. O'Donnell, 8 AUen, 548 * C. v. Welch, 97 Mass. 593 (1867). (1864). s C. t. Heffron, 102 Mass. 148 2 C. V. Hogan, 97 Mass. 122 (1867). (1869). 8 C. V. Lahy, 8 Gray, 459 (1857). Chap. VI.] FORMER JUDGMENT IN LIQUOR CASES. 427 the first count judgment might be rendered upon it, and a nol. pros, entered on the second count.^ § 626. Autrefois acquit. Though a former conviction as a common seller during a certain period would bar an indict- ment for a single sale during the same period, this is not so as to an acquittal. For non constat but the acquittal was based on the want of sufficient evidence of defendant's being a com- mon seller during the period charged ; in which case the ac- quittal would not show defendant to have been tried for the single sale.^ A former acquittal for keeping a tenement for the sale of liquor is no bar to an indictment for selling at the same time and place. The offences are distinct in kind, and the rule is, that the former judgment is no bar unless the evi- dence required under the second indictment would have suf- ficed for conviction under the first. Under the second of these indictments it was not necessary that defendant should have been keeper of any tenement whatever ; while, on the first in- dictment, the jury would have been obliged to acquit in the absence of any proof of the keeping, no matter how many sales may have been proved.® (See Plea op Fokmee Judgment, ante, p. 44.) 1 C. V. Mead, 10 Allen, 396 (1865). = C. v. Bubser, 14 Gray, 83 (1859). 2 C. V. Hudson, 14 Gray, 11 (1859). CHAPTER VII. PKOCEDUKB IN LIQTJOE CASES. § 527. The sentence. In Harris v. C. 23 Pick. 280 (1839), it was held that a defendant convicted under Rev. Sts. c. 47, § 1 (Gen. Sts. c. 86, § 31), as a common seller was sentenceable to a fine and costs, and to stand • committed till paid ; and that § 27 merely allowed (the word " may " being used) the substitution of ninety days' imprisonment. Under Rev. Sts. c. 145, § 3 (Gen. Sts. c. 180, § 6), it was held that a poor convict, sentenced as a common seller to imprisonment, fine, and costs, was not dischargeable until three months after the expiration of his sentence of imprisonment, not being im- prisoned until that time for "■ fine and costs only." ^ A de- fendant who has been tried and found guilty on several differ- ent complaints for illegal sales, if the evidence suffice to prove but one sale, may be sentenced for that, and have a new trial in the other cases.^ A defendant convicted on three counts, each charging a sale of liquor under St. 1852, c. 322, § 7, was held sentenceable to a fine of ten dollars ©n each count, and to give a bond to the Commonwealth.^ A statutory bond not to vi- olate the law as to the sale " and manufacture " of liquors was held void ; the statute providing only for a bond in re- spect to sales.* § 528. Other matters. By Gen. Sts. c. 19, § 15, and St. 1870, c. 227, a city marshal, or other police officer, or the city treasurer, may prosecute for all fines and forfeitures that may enure to the city ; but not constables.^ 1 Gannon v. Adams, 8 Gray, 395 » Tattle v. C. 2 Gray, 505 (1854). (1857). * C. V. Kelly, 9 Gray, 259 (1857). !" C. t. Remby, 2 Gray, 508 (1854). ' C. v. Smith, HI Mass. 407 (1873). Chap. VII.] PROCEDXJBE IN LIQUOR OASES. 429 An indictment contained four counts. The first was for being a common seller, and the other three ■were for single sales. The verdict was " Not guilty as common seller, but guilty of two single sales." The court ordered a verdict of guilty to be entered on the second and third counts, without conferring with the jury or with the parties ; but the verdict was set aside as not conformed to the finding, it not appear- ing on which two counts defendant was convicted.^ On a charge of keeping a tenement for the illegal sale " and " illegal keeping of intoxicating liquors, defendant may be convicted of either of these offences.^ In C. V. Phelps, 11 Gray, 72 (1858), it was held that in the appeal court a defendant must be tried on a certified copy of the complaint, and not on the original record. Nei- ther could he be tried or convicted on a copy alleging a sale on a different day from the one alleged in the complaint. An indictment for keeping a tenement used for the illegal keeping and illegal sale of intoxicating liquors is not remova- ble to the United States Circuit Court under U. S. St. 1833, c. 67, § 8, by a defendant holding a license to sell such liquors under the internal revenue law of the United States. That statute authorizes such removal in a " suit or prosecution against any of&cer of the United States or other person for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title, set up or claimed by such ofiicer or other person under any such law of the United States." A writ of habeas corpus cum causd for the removal of the case had been issued by the United States Circuit Court in accord- ance with the statute. It was disregarded by the court below. The defendant was tried and found guilty, and then brought the case up on exceptions. It was held : (1.) that the terms used in the statute showed that it was intended to apply to civil cases alone ; (2.) that the effect of the U. S. St. of 1864, c. 173, § 50, is apparently to limit the privilege given by the 1 C. u. Munn, 14 Gray, 364 (1860). ^ C. v. Finnegan, 109 MasB. 363 (1872). 430 OFFENCES UNDER THE LIQUOR LAWS. [Past V. act of 1833 to revenue officers, or other persons carrying the revenue laws into execution ; and (3.) that the defendant's license from the United States to keep and sell liquors con- ferred upon him no right to violate the laws of Massachu- setts.i (But semble, the last reason assigned for this decision, on which the court chiefly relied, is not satisfactory, admit- ting that it would constitute good ground for acquittal, or even for a refusal by the United States Circuit Court to issue its writ of habeas corpus ; if the case was otherwise within the purview of the statute, this sufficed to give the Circuit Court jurisdiction to issue their writ ; on which being done, the statute declares that " any further proceedings, trial, or judgment therein in the state court shall be wholly null and void.") 1 C. i;. Casey, 12 Allen, 214 (1866). CHAPTER VIII. PROCEEDINGS IN SEIZUEB CASES. § 529. Liability to seizure. By St. 1869, c. 415, the liq- uors are subject to forfeiture, if illegally kept and sold, irre- spective of the knowledge or consent of the owner.^ Under this statute, § 44, though the sale of liquors be conducted in an orderly manner, if the place is a shop for such sale, and • persons go there without restriction to buy them, it is a "place of common resort." ^ The sales need not have been made or intended to be made at the claimaint's dwelling-house. If the house was in effect a magazine in which liquors were stored, which claimant intended to sell at a saloon in the neigh- borhood, it is sufficient.^ If the affidavit state that " many people are seen waiting outside of the house for the claimant to come, with bottles in their hands," this is probable cause for a seizure.* Under § 44, liquors intended to be sold may be seized in transitu in the carrier's hands, and, under § 57, without a warrant.^ But liquors arriving at the freight depot of a railroad com- pany in the regular course of business, like other freight, and not otherwise kept or deposited there, are not liable to seizure.^ § 530. The oomplaint. A charge of an intent to sell liq- uors, " not being authorized," sufficiently avers an intent to sell them in violation of law ; "^ and negativing any legal au- thority, to sell sufficiently negatives such authority by a town vote under St. 1871, c. 334.8 1 C. V. Int. L. 107 Mass. 396 (1871). 6 Q. v. Int. L. 107 Mass. 386 (1871). 2 C. V. Int. L. 107 Mass. 216 (1871). « C. a. Int. L. 116 Mass. 26 (1874). » C. V. Int. L. 116 Mass. 27 (1874) ; T C.v. Int. L. 110 Mass. 182 (1872). C. V. Int. L. 116 Mass. 24 (1874). » c. v. Int. L. 110 Mass. 416 (1872). * C. «. Int. L. 105 Mass. 590 (1870). 432 OFFENCES UNDER THE LIQUOR LAWS. [Pakt V. " About and not exceeding 50 gallons " is a good descrip- tion of the quantity of liquor ; although only two gallons were found, and some of the liquors described were not found at all.^ "About 500 gallons " of each of certain liquors named was alleged in the complaint. The quantity returned seized was considerably less than this ; but it was held no cause to dismiss the complaint.^ " Intoxicating liquors, to wit, a cer- tain quantity of mixed liquors," sufficiently avers the mixed liquors to be intoxicating.^ The complaint in Q. v. Int. L. 110 Mass. 182 (1872), was held to sufficiently describe the liquors kept. A charge that the place was occupied by defendant " as a place of common resort kept therein," is sufficient.* That liquors were kept " in a dwelling-house building " occupied by A. as a " dwelling-house and premises," sufficiently avers them to have been kept by the occupant in his dwelling- house ; ^ and a charge that the occupant sold liquors at his house within a month previous is sufficient to authorize a warrant.^ In C. v. Int. L. 113 Mass. 455 (1873), as also in Same v. Same, lb. p. 13, the locality was held to be sufficiently described. A building which is No. 27 may be described as No. 22, if it be proved to be as well known by one of these descriptions as by the other.'' The complainant's name and' county suffice to identify him, so that he can be summoned on a warrant.^ A complaint for a search-warrant under Gen. Sts. c. 86, § 43, was held good, though charging in the alternative that the liquors were " sold by the occupant, or with the occu- pant's consent, or have been taken from his house to be sold ; " the defect being a mer^clerical error, arising from an omission to strike out printed words in the form.* Where the complaint stated " common report " as the " grounds and circumstances " for the issuing of a warrant, 1 C. V. Int. L. 116 Mass. 21 (1874). 6 ibid. « C. 0. Int. L. 97 Mass. 63 (1867). ' C. v. Int. L. 6 Allen, 596 (1863). « C. V. Int. L. no Mass. 416 (1872). " C. v. Int. L. 113 Mass. 13 (1873). * C. «. Leddy, 105 Mass. 381 (1870). » C. v. Int. L. 13 Allen, 52 (1866). 6 C. V. Int. L. 116 Mass. 27 (1874). Chap. VIII.] SEIZURE OASES. — SBARCH-WAEKANT. 433 this was held sufficient, not for defendant's conviction, but to justify the warrant. It might have been otherwise if it were shown that the judge had abused his discretion and had not acted in good faith, and that the charge was utterly ground- less.^ Complainant's ignorance of the person by whom the liquors were kept does not invalidate the process.^ A com- plaint for the seizure of liquors under Gen. Sts. c. 86, § 42, was held maintainable, though founded upon knowledge ob- tained through former proceedings to get possession of the building ; the fact of liquors being there being till then un- known.^ When the complainant swears he has reason to believe and does believe that liquor was sold in a dwelling- house by the occupant within one month before the date of the complaint, neither the complaint nor the warrant need aver that there was a place of common resort kept in the house.* A complaint under St. 1852, c. 322, § 8 (Gen. Sts. c. 86, § 49), for the forfeiture of liquor for a single sale, was held to be a criminal process ; and that, under the constant practice in Massachusetts, it need not allege it to be on behalf of a town ; though, as a concurrent remedy, an action of debt ia also given to the town. When the complaint is in the name of the Commonwealth the forfeiture enures to the State.^ Under Gen. Sts. c. 86, § 42, it is insufficient to aver that the house " is a place of common resort," instead of alleging that " a place of common resort is kept therein."^ A complaint under St. 186^, c, 415, § 44, praying a warrant for the search of liquors in a whole building, part of which it shows to be occupied by a stranger, was held bad ; and both the complaint and warrant were quashed as too general ; as empowering a search in the part exclusively occupied by the stranger.'^ § 531. The search-'warrant. Under Gen. Sts. c. 120, § 36, and c. 86, § 42, trial justices have jurisdiction in searches for liquors, and a warrant may be made returnable before the same justice, though not living in the town.^ A direction in 1 C. V. Leddy, 105 Mass. 381 (1870). « C. v. Newell, 5 Gray, 76 (1855). " C. u. Int. L. 115 Mass. 21 (1874). 6 C. c.. Int. L. 97 Mass. 332 (1867). 8 C. V. Int. L. 4 Allen, 393 (1862). ' C. v. Int. L. 110 Mass. 499 (1872). « C. f. Int. L. 110 Mass. 182 (1872). 8 c. „. Int. L. 97 Mass. 63 (1867). 28 434 OFFENCES UKDER THE LIQUOR LAWS. [Pakt V. a warrant to " make due return of this warrant " is sufficient under Gen. Sts. c. 86, § 42 ; and is complied with by a return before the same justice who issued it.^ The averment of prob- able cause need not appear in the certificate or in the jurat to the complaint. The warrant is sufficient if such averment appear only at the end of the directions, or even in the teste.^ A warrant may be issued under St. 1869, c. 415, for the search of intoxicating liquors in a store kept in a dwelling- house, without the oath of complainant required in § 45 ; but otherwise as to a dwelling-house in which no tavern, store, grocery, eating-room, or place or common resort is kept.^ A charge of a sale of liquors at the house within a month is suf- ficient to authorize a warrant.* If the description in the warrant be not inconsistent with that in the complaint it is sufficient, though something unnecessary be added.^ § 532. "Warrant, when not sufladent. Under Gen. Sts. c. 86, § 44, where a warrant described the place as " at Worces- ter," it really being in Hard wick, the proceedings were quashed.® Under St. 1869, c. 415, § 46, an omission in the warrant to state that probable cause had been shown was held fatal.^ The complaint for a search-warrant described the place in which the liquors were kept as " a certain building situate on Tremont Street, and numbered 31 on said street," " and the first floor and cellar of said building, and the back room over the rear part of the store in said building," and prayed for a warrant to search "said building described as aforesaid." The warrant, directing the entry and search of the " building here- in above described," was held void ; the latter clause of the description in the complaint being construed as limiting it to the parts of the building specified.^ A warrant authorizing the search of any part of a building except where the liquors are alleged to be deposited is void." Where the complaint described two tenements in which liquors were kept, and the 1 C. V. Int. L. 97 Mass. 62 (1867). « C. v. Int. L. 97 Mass. 334 (1867). 2 C. V. Int. L. 110 Mass. 182 (1872). ^ C. c. Int. L. 105 Mass. 178 (1870). 8 C. V. Int. L. 108 Mass. 19 (1871). 8 C. v. Int. L. 109 Mass. 371 (1872). ' C. V. Int. L. 116 Mass. 27 (1874). » C. ». Int. L. 115 Mass. 145 (1874). ' Ibid. Chap. Vm.] SEIZURE CASES. — THE EVIDENCE. 435 warrant directed a search of "the tenement," thus author- izing the officer to decide which one of them should be searched, the warrant was held void, as not clearly designat- ing the place to be searched, as required by St. 1869, c. 416, §46.1 Where a search-warrant is void on its face, the claimant may lawfully eject the officer left in charge of the liquors seized under it on his refusal to depart on request.^ § 633. The evidence. An officer who has seized liquors on a search-warrant may testify orally as to what he seized under it, though this could be shown also by his official re- turn.^ Evidence is admissible that claimant was keeping a liquor shop in another street ; * as is also evidence of a card nailed, with claimant's consent, upon a barrel that had been seized, haying on it the printed words, "Bunker Hill Brew- ery ; the trade supplied at the G. agency, Danton St. ; " ^ and evidence of claimant's keeping a saloon is admissible on the point of an intent to sell.^ Evidence is admissible of a sign over a shop door with claimant's name upon it.' It was held that the prosecution might ask witnesses, " Do you know who kept the place ? " and " Do you know who was in charge of the premises ? " the questions being accompanied by the judge's instruction to state only what they knew of their own knowledge.^ Under St. 1869, c. 415, § 45, to prove the keep- ing for illegal sale, the occupant's plea of guilty to a com- plaint for a single sale some weeks before the time alleged, in a saloon still kept by him, is competent evidence.® In C. V. Int. L. 116 Mass. 24 (1874), certain facts in evi- dence were held sufficient to warrant the jury in finding that certain liquors seized in claimant's bed-room were intended for SEile at his saloon, half a mile off. In 0. v. Int. L. 107 Mass. 386 (1871), certain facts were deemed to be admissible evidence for the jury ; and in 0. v. Leo, 110 Mass. 414 1 C. V. Int. L. 116 Mass. 342 (1874). « C. v. Int. L. 107 Mjass. 386 (1871). 2 C. 0. Int. L. 105 Mass. 178 (1870). ' C v. Int. L. 122 Mass. 36 (1877). » C. V. McCue, 121 Mass. 358 (1876). 8 j|,id. * C. i;. Int. L. 110 Mass. 500 (1872). » C. v. Int. L. 116 Mass. 27 (1874). « Ibid. 436 OFFENCES UNDER THfi LIQUOR LAWS. [Pakt V. (1872), certain testimony by state constables was deemed sufficient to warrant a conviction ; while in 0. v. Int. L. 116 Mass. 21 (1874), the evidence given was held insufficient to convict. In 0. V. Int. L. 122 Mass. 36 (1877), the question was whether, a seizure case being a criminal proceeding, St. 1864, c. 121, § 1 (directing that in all criminal prosecutions in which the defendant relies for justification on any license, «&c., he shall prove the same), applies as well to a "claimant" as to a " defendant." It was held, on an examination of various provisions in St. 1876, c. 162, in which a claimant is treated and considered as a " defendant," that a claimant is equally within the statute. § 634. The locality. The place as .described was " 195^ Washington Street, Boston ; " as proved, " under No. 197." As the complaint and warrant described the place with suf- ficient particularity to identify it, the variance was held to be immaterial.^ In another case the liquors were alleged to be kept " in the basement." They were proved to have been found under a sidewalk communicating by a door with the basement. It was 'held to be properly left to the jury to say whether the room under the sidewalk was attached to the basement as a part of it.^ A complaint described the locality to be in " Westminster Street." Claimant gave evidence of its being known as " High Street." Under a permission to prove the street to be as well known by one name as by the other, a v^itness for the prosecution swore that he had never ■known it but as "Westminster Street." It was objected that this was no proof of its being as well known by one name as bj' the other ; but the evidence was held sufficient to support the complaint.^ A complaint described " a certain tenement situated on the northeasterly junction of Rogers Street and Central Street, and known as the Portsmouth Ale Depot," "and occupied by said A. B. (the claimant) as a place of common resort." It was proved that only the first floor was 1 C. V. Int. L. 117 Mass. 427 (1875). » C. v. Int. L. 113 Mass. 208 (1873). » Ibid. Chap. VIII.] SEIZURE CASES.— THE SEIZXJEB. 437 thus occupied ; but the evidence was held sufficient to support the description in the complaint ; and it was deemed imma- terial that the upper stories were occupied by three families as dwelling places. ^ A complaint charged the liquors to be kept " in the cellar of a certain one and a half story wooden house occupied 'by A. as a storehouse for intoxicating liquors." The proof was that they were kept in the cellar of a house in which claimant lived with his family. It was objected that it was not alleged that a place of common resort was kept in the dwelling-house, and that therefore no warrant could issue under St. 1876, c. 162, § 2. But it was held that such allegation was not nec- essary. The allegation was, not that the liquor was kept in a building occupied by claimant as a storehouse, but that they were kept " in the cellar " of a house occupied by him as a storehouse. So that there was no variance.^ _ A misdescrip- tion as to the number of a street is immaterial, if the place be as well known by one number as by the other, and if the evidence suffice to identify it.^ But where the complaint charged, under St. 1869, c. 415, § 44, that the liquors were kept deposited by some person un- known in a building occupied by said unknown person as a storeroom, and the proof was that they were in the freight depot of a railroad company, where they had arrived in the regular course of business like other freight, and not otherwise kept or deposited there, the variance was held fatal.* § 535. The seizure. Liquors of the kinds, and not exceed- ing the quantities mentioned in the warrant, may be seized.* G. and T. occupied a cellar together ; G.'s part being divided from T.'s by a partition. G.'s barrel of beer was kept on T.'s side of the partition ; but G. drew from it by a faucet on his own side. It was held that under a warrant against G., the officer might enter and seize the barrel on T.'s side.^ Among 1 C. V. Int. L. 122 Mass. 8 (1877) ; * C. v. Int. L. 116 Mass. 26 (1874). C. V. Int. L. 122 Mass. 36 (1877). 6 c. v. Int. L. 13 Allen, 561 (1866). 2 C. V. Int. L. 122 Mass. 14 (1877). « C. v. Leddy, 105 Mass. 381 (1870). a C. V. Int. L.'122 Mass. 36 (1877). 438 OFFENCES UNDER THE LIQUOE LAWS. [Part V. the articles seized was one not subject to forfeiture, and it was objected that a statutory forfeiture could not be founded on a trespass. But it was held that the seizure inter alia of an article not legally subject to seizure does not render the whole seizure illegal, or make the officer a trespasser ab initio, except as to that article.^ Where a seizure had been made without warrant and before a complaint, it was held that the complaint afterwards made related back to the time of the seizure, and so did not vitiate the statement of the liquors being in claimant's possession.^ It was held that a state deputy constable might execute a search-warrant for liquors under St. 1865, c 249, § 2, and also warrants for the service of notice under Gen. Sts. c. 86, §§ 46, 54.^ § 536. The notice. Under Gen. Sts. c. 86, § 47, a notice to claimants describing the liquors in casks, &c., is sufficient notice to the owners of the casks.* Where the complaint and warrant for the search of a dwelling-house described the prem- ises as " occupied by A. B. as a barn, shed, and dwelling- house," and the notice under § 47 stated them as " the build- ing occupied by said A. B. as a house, barn, and shed," it was held that there was no material variance ; a " house " gen- erally meaning a "dwelling-house.^ St. 1869, c. 415, § 56, which makes the notice to the claimant returnable to the next term of the Superior Court held in the county, refers to the next term for criminal business.^ In the twenty-four hours after a seizure allowed for notice to the alleged keeper under Gen. Sts. c. 86, §§ 46, 54, Sunday is not included.^ In a seizure of liquors under Gen. Sts. c. 86, § 42, if the original papers show the proper notice to have been issued within twenty-four hours after the seizure, an error in the record stating a later date of the notice is immaterial. The issuing of the notice under c. 86, §§ 46, 64, is merely a ministerial act, and need not be recorded.^ On a seizure of liquors under Ibid. » C. V. Int. L. 113 Mass. 14 (1873) s C. V. Int. L. 107 Mass. 386 (1871 8 C. u. Int. L. 97 Mass. 601 (1867). , « C. V. Int. L. 6 Allen, 599 (1863). « C. v. Int. L. 4 Allen, 593 (1862) s C. V. Int. L. 107 Mass. 386 (1871). ° C. „. Int. L. 107 Mass. 386 (1871). C. V. Int. L. 97 Mass. 601 (1867). ' C. v. Int. L. 97 Mass. 601 (1867). Chap. VIII.] PROCEEDINGS IN SEIZURE CASES. 439 Gen. Sts. c. 86, where tlie justice before whom the warrant is returnable values them at over |20, the notice to the keeper and claimants under § 54 is properly returnable to the Su- perior Court for criminal business, if there are separate terms for civil and criminal business.^ A notice of seizure " at Worcester," under Gen. Sts. c. 86, § 47, it having really been in Hardwick, was held insufficient.^ A claimant admitted to prosecute cannob object to a defect in the service of the notice ; ^ neither can a claimant who has received actual notice to appear, and has appeared generally, dispute the regularity of the notice.* § 637. The verdict. In forfeiture of liquor cases, the pro- ceedings throughout are in the nature of a criminal prosecu- tion ; and the jury must therefore be satisfied beyond reason- able doubt, and cannot convict from the mere preponderance of evidence, as in civil cases.^ The issue for the jury to try is not only whether the claimant kept the liquors unlawfully, but whether they were kept on the premises described in the complaint.® The jury may find the liquors seized were those described in the complaint, though the complaining officer swear that when he made the complaint he had no knowledge of the quantities, kinds, or packages.^ A verdict under Gen. Sts. c. 86, § 42, finding that the liquor " was owned or kept there," is insufficient.^ § 53?. Other matters. A justice's opinion as to the value of the liquors is sufficiently shown on the record if it appear in the notice to the parties.^ It need not appear on the rec- ord that the complainant was summoned as a witness.^" In a seizure case under St. 1869, c. 415, § 44, when the proceed- ings are quashed for formal defects, the claimant is entitled to a return of the liquors.^^ A seizure case being a criminal proceeding, a claimant's default does not authorize a judg- 1 C. V. Int. L. 13 Allen, 561 (1866). ' C. c. Int. L. 110 Mass. 182 (1872). 2 C. V. Int., L. 97 Mass. 334 (1867). » C. v. Int. L. 4 Allen, 601 (1862). 8 C. u. Int. L. 13 Allen, 561 (1866). 9 C. v. Int. L. 13 Allen, 561 (1866). 4 C. V. Int. L. 110 Mass. 182 (1872). lo C. v. Int. L. 97 Mass. 62 (1867). ■> C. V. Int. Lf 115 Mass. 142 (1874). u C. o. Int. L. 103 Mass. 454 (1869). « C. V. Int. L. 117 Mass. 427 (1875). 440 OFFENCES UJSTDER THE LIQUOR LAWS. [Past V. ment of forfeiture. The court can simply proceed without him. And though a judgment by default against claimant has been set aside, if the default itself has not been opened, he is not entitled to produce any evidence on the trial ; ^ and, for the same reason, a claimant of liquors seized and returned to him is not entitled to costs under the statute. (Rev. Sts. c. 121, § 22 ; Gen. Sts. c. 157, § 17.)2 On the trial of a seiz- ure case under St. 1869, c. 415, § 44, it was contended that the prosecution had no right to peremptory challenges under St. 1869, c. .151, the proceeding being merely in rem ; but it was held that, though a proceeding in rem, as it involved a criminal charge it was a criminal cause under the statute ; and so the peremptory challenges were allowed.^ The affida- vit of probable cause need not be framed with technical accu- racy. It is not an allegation or pleading against a defendant ; its only object being to satisfy the judge of the propriety of issuing a warrant.* Under St. 1869, c. 415, a failure to sum- mon complainant as a witness does not invalidate the proceed- ings ; the provision being directory only, for the benefit of the government.^ A delivery to the owner, with complain- ant's consent, of part of the liquors seized, does not annul the proceedings.® In 0. v. Int. L. 97 Mass. 600 (1867), the court refused to arrest the judgment on the ground that only certified copies of the papers were sent up to the Superior Court. The statute making no provision as to whether cer- tified copies or the originals should be used, the jurisdiction of the court was not affected.'^ In a seizure case under St. 1869, c. 415, § 44, an adjudication, of probable cause to be- lieve the complaint to be true is conclusive in the revisory court.^ A claimant of liquors seized, after a judgment of forfeiture in the Superior Court, has no appeal to the Su- preme Court.^ Under St. 1869, c. 415, §§ 44, 48, 56, where a Police Court > C. V. Int. L. 113 Mass. 23 (1873). = C. v. Int. L. 113 Mass. 14 (1873). " C. V. Int. L. 14 Gray, 375 (I860). ' C. v. Int. L. 97 Mass. 600 (1867). « C. V. Int. L. 107 Mass. 216 (1871). » C. v. Int. L. 103 Ma^s. 448 (1869). * C. V. Int. L. 105 Mass. 181 (1870). " C. v. Int. L. 110 Mass. 188 (1872). ' C. c.. Int. L. 108 Mass. 290 (1871). Chap. VIII.] PKOCEEDINGS IN SBIZITBE CASES. 441 has ordered the seizure of liquors found to be more than twenty dollars in value, the original papers are not required to be transmitted, and copies are sufficient.^ 1 C. V. Int. L. no Mass. 172 (1872). PART SIXTH. OF CRIMINAL STATUTES AND THE CRIMINAL JURISDICTION OF COURTS. CHAPTER I. OF THE VALIDITY OP CEETAIN STATUTES. § 539. Liquor laws. A statute prohibiting retail sales of spirits, and exacting an excise for a license to make such sales, is not unconstitutional. Though the Constitution is in- tended to secure to all the right of acquiring property, and the possession and protection of property when acquired, the legislature has power to regulate the exercise of these rights for the general welfare, as in the case of inspection laws. Article vi. forbids exclusive privileges. But a license to sell spirits is not conferred as a privilege. The privilege is only incidental, and is not the purpose of the law ; the pur- pose is only the welfare of the community.^ So, in C. v. Fredericks, 119 Mass. 199 (1875), St. 1875, c. 99, providing for the granting of liquor licenses, and requiring the payment of a fee or excise therefor, was pronounced constitutional. In this case the meaning of certain provisions of this act is explained. In O. v. Howe, 13 Gray, 26 (1859), it was claimed that St. 1855, c. 405, § 1 (Gen. Sts. c. 87, § 6), de- claring tenements used for the unlawful sale of liquors to be common nuisances, was unconstitutional ; that a common nui- sance may be lawfully destroyed by any one without notice to the owner and without the owner's knowledge of the il- 1 C. V. Blackington, 24 Pick. 352 (1837). Chap. I.] OF THE VALIDITY OF CERTAIlir STATUTES. 443 legal use ; and that this was contrary to Declaration of Rights, Article xii., under which no citizen can be deprived of his property but by due course of law. But the objection was overruled. Where a private corporation was authorized by a special act to manufacture and sell beer, it was held that, al- though no power was reserved in the charter to repeal or alter it, the corporation, like an individual, was subject to all such police laws as the legislature might deem to be required for the good of the whole, including a prohibition of the sale of certain kinds of property.^ The constitutionality of Gen. Sts. c. 87, §§ 6, 7, was also affirmed in C v. Owens, 114 Mass. 252 (1873). In C.v. Williams, 6 Gray, 1 (1856), it was held that the statute making the mere delivery .of liquor in any other place than a dwelling-house primd facie evidence of a sale (St. 1852, c. 322; St. 1855, c. 215, § 34; Gen. Sts, c. 8G, § 33) is constitutional. This decision was affirmed in 0. v. Wallace, 7 Gray, 222 (1856), and 0. y. Rowe, 14 Gray, 47 (1859). (Dangerous as may be a power in the legislature to enact that an act innocent in itself shall constitute evi- dence of the commission of a crime, it would seem neverthe- less to exist. The legislature may constitutionally make an act intrinsically innocent punishable as a crime ; and declar- ing that such an act shall be evidence of a crime is simply doing this in another form.) And in C. v. Burns, 9 Gray, .132 (1857), St. 1855, c. 215, § 17 (Gen. Sts. c. 86, § 31), mak- ing proof of three sales sufficient evidence to convict a defend- ant of being a common seller, was held to be constitutional ; though it was contended that it was beyond the scope of leg- islative power to declare what shall be " sufficient evidence" of an offence. It would have been different, it was argued, if the statute had simply enacted that" one who had made three sales of liquor should be subject to the penalty imposed upon a common seller. In C. V. Kimball, 24 Pick. 349 (1837), it was contended that Rev. Sts. c. 47, requiring a license for the sale of liquors in less quantities than twenty-eight gallons, was repugnant to 1 C. V. Int. L. H5 Mass. 153 (1874). 444 CRIMINAL STATUTES AND JURISDICTION. [Part VI. the clause in the Federal Constitution prohibiting the States from laying duties on imports, and also to the power of Con- gress to regulate commerce ; but the court, referring to the case of Brown v. Maryland (12 Wheat. 419), held that, from the moment goods are no longer in their original packages, and have become mixed up with the general property of the State, they are subject to state regulation, and to the exer- cise by the State of its police powers, as in the case of reg- ulations for the sale and removal of gunpowder. The same doctrine was held in O. v. Clapp, 5 Gray, 97 (1855). § 540. Bill of Eights, Article xii., requiring the crime to be " fully and plainly, substantially and formally de- scribed." This .article did not change the rules of the com- mon law.i Rev. Sts. c. 187, § 11 (Gen. Sts. c. 172, § 16), under which a defendant indicted for an assault with intent • to murder may be convicted of a simple assault .without felo- nious intent, is not repugnant to this article ; for the greater includes the less.^ Neither is St. 1864, c. 250, § 1 ; which de- clares that no variance between the writing in proof and that set forth in the indictment shall be deemed material, if the identity is evident, and the purport is so described as to pre- vent all prejudice to the defendant.^ St. 1852, c. 322, § 18, authorizing indictments for being a common seller of spiritu- ous liquors to be amended as a matter of right, in respect to an allegation of a former conviction, was held not to be repug- nant to this article. The fact of a former conviction could be proved only by the record, of which the defendant was necessarily conusant, and by which he was absolutely bound. There w^s no danger therefore that a defendant could be in- jured by such an amendment.* Where a defendant had been tried for murder before the Act of 1858, c. 154 (Gen. Sts. c. 160, § 1), establishing two degrees of murder, it was held to be no violation of the article in question to apply the statute to the indictment, though made before its passage ; the court considering that the crime, as defined in the statute, was one 1 C. V. Davis, 11 Pick. 432 (1831). » C. v. Hall, 97 Mass. 570 (1867). 2 C. u. Lang, 10 Gray, 11 (1857). * 0. v. HoUey, 3 Gray, 458 (1855). Chap. I.] OP THE VALIDITY OF CERTAIN STATUTES. 445 and the same with that at common law, and therefore requir- ing no change in the manner of setting it forth in the indict- ment ; and tljat the only effect of the statute was to mitigate the punishment on certain palliating circumstances being shown on the trial.-'^ § 541. No person to be " deprived of life, liberty, or es- tate, but by judgment of his peers or the law of the land ; " and " the legislature shall not make any law that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, with- out trial by jury." (Art. xii.) St. 1855, c. 448, virtually authorizing a single magistrate, without presentment by a grand jury, to try an offence punishable by confinement in the state prison, was pronounced to be in conflict with these clauses. The law of the lan4 requires, in the case of all in- famous offences, an indictment or presentment by a grand jury, dispensing with these formalities in respect to minor or petty offences. Confinement in the state prison is an infa- mous punishment, being in substitution of all infamous pun- ishments formerly in use. But it was held in the same case that the statute was not unconstitutional as impairing the right of trial by jury ; on the ground that it gave an un- fettered right of appeal and a jury trial in the appellate court, subject only to giving bail to appear there, or in de- fault of bail to be committed to jail. The object of the con- stitutional provision was held to be to secure a benefit to the accused which he might waive or avail himself of at his elec- tion.2 (On this point the dissenting opinion of Thomas, J., appears to have more reason on its side.) St. 1874, c. 258, § 1, giving jurisdiction of all offences committed in Suffolk County by minors under seventeen years of age, not punish- able by death or imprisonment for life, to the trial justices of juvenile offenders in that county, is unconstitutional and void ; since it empowers the justices to sentence such juvenile offenders in certain cases to the state prison for a term of 1 C.U.Gardner, 11 Gray, 438(1858). ''Jones v. Bobbins, 8 Gray, 329 (1857). 446 CRIMINAL STATUTES AND JURISDICTION. [Part VI. years, without any indictment or presentment by a grand jury.i A defendant in a Police Court, by making default on his recognizance to prosecute his appeal in the Superior Court, waives his right to a jury, and is sentenceable under Gen. Sts. c. 173. This is not repugnant to the Bill of Rights, nor to the Federal Constitution, which relates to juries only in the United States courts.^ § 542. Bill of Eights, Article xxix., securing the right of trial " by judges as free, impartial, and independent as the lot of humanity ■will admit." Notwithstanding this ar- ticle, the legislature may enact that the interest of an inhab- itant of a city to which enures the penalty for a breach of a by-law shall not disqualify him as judge, juror, or witness. A common law disqualification may be removed by the legis- lature. The qualification contained in the article itself im- plies- that, though some degree of bias or interest may exist, it is not to be regarded if so inconsiderable that it could not be reasonably supposed capable of preventing an impartial trial.^ It has been uniformly held that a remote and minute interest of this kind is not within the meaning of this article of the Declaration of Rights. Thus Rev. Sts. c. 95, § 28 (Gen. Sts. c. 132, § 30), providing that it shall be no objec- tion to a juror that he is a tax-payer in a town that may be benefited by a recovery of the penalty, is no violation of this article,* And in C. v. Ryan, 5 Mass. 90 (1809), it was held that the legislature might constitutionally provide that a re- mote and small corporate interest should not disqualify jurors. Even where a fine goes to the Commonwealth, it was said, every juror has some remote interest in it, and where should the line be drawn ? § 543. Fugitives from justice. The provisions in Rev. Sts. c. 142, § 8 (Gen. Sts. c. 177, § 7), for the apprehension of those charged with an offence in another State, are not re- pugnant to the Constitution or laws of the United States ; being rather in aid of them, and not tending to impair the 1 Nolan's Case, 122 Mass.330 (1877). » C. v. Worcester, 3 Pick. 462 (1826). 2 C. ■/. Whiting, 108 Mass. 5 (1871). * C. v. Reed, 1 Gray, 472 (1854). Chap. I.] OP THE VALIDITY OP CERTAIN STATUTES. 447 rights or relax the duties they were intended to enforce.^ And the provision in the statute empowering the governor alone to issue the warrant is not repugnant to the United States Act of 1793, directing it to be issued by the " execu- tive authority " of the State ; this being construed to mean the " executive department " of the government as distin- guished from the legislative and judicial departments. The warrant, therefore, need not emanate from the governor and council.^ A warrant from the governor to an agent to " take and receive," authorizes him to arrest, and is agreeable to the laws of the United States and to the Constitution and laws of Massachusetts.^ § 544. Miscellaneous points. Declaration of Rights, Ar- ticle ii., enacts that " no subject shall be molested for his re- ligious profession or sentiments, provided he does not disturb the public peace, or obstruct others in their religious wor- ship." Under Rev. Sts. c. 130, § 15 (Gen. Sts. c. 165, § 19), punishing the denial of God, &c., with intent to calumniate and blaspheme, such denial is not punishable unless made with bad intent, and so is not repugnant to the Declaration of Rights ; * and Article xvi., declaring that the liberty of the press ought not to be restrained, is not violated by a pros- ecution for a blasphemous publication. The article simply prohibits the requiring of a previous license to publish.^ St. 1846, c. 244, § 1 (Gen. Sts. c. 50, § 27), forbidding hawking and peddling without a license, does not infringe the clause of the Federal Constitution giving Congress the exclusive right to regulate commerce, nor the clause forbidding States to lay duties on exports or imports without the consent of Congress. Such licenses impose no duties upon imports, and the right of each State to regulate its own internal commerce is not' affected by the constitutional provision.^ St, 1869, c. 384, § 31, forbidding the catching of smelts with a seine, is 1 C.W.Tracy, 5 Met. 536 (1843). * C. v. Kneeland, 20 Pick. 206 2 C. V. Hal), 9 Gray, 262 (1857). (1838). 3 Ibid. 6 Ibid. s C. u. Ober, 12 Cush. 493 (1853). 448 CRIMINAL STATUTES AND JURISDICTION. [Pakt VI. constitutional. The rights of riparian owners have ever been subordinate to those of the entire community in respect to measures to prevent the extermination of fish at the breeding season ; the same public right existing with respect to birds.^ And this, regardless of the length of time the fishery right may have been enjoyed by the public or by individuals. ^ By St. 1870, cc. 389, 390, the legislature may authorize a town to decide by vote whether the sale of spirituous liquors within its limits shall be permitted or prohibited. This is no dele- gation of legislative power ; but a mere authority to make a police regulation.3 St. 1795 (Rev. Sts. c. 133, § 8 ; Gen. Sts. c. 171, § 18), enacting that if the cause of death be in one county and the death in another, the offender may be in- dicted in the latter county, is not repugnant to the declara- tion in the Constitution, that the verification of facts in crimi- nal proceedings in the vicinity where they occurred is one of the greatest securities to the citizen.* Bill of Rights, Article xii., giving to the accused the right " to meet the witnesses against him face to face," is not infringed by allowing evi- dence of what a deceased witness testified on a preliminary examination before a justice of the peace; defendant having been then present, where ha could have cross-examined the witness if he chose.^ Constitution, ch. vi., § 6, provides that all laws adopted and used before the adoption of the Consti- tution should still remain in force until altered or repealed. By the term " all laws " is meant " systems of law," as the common law ; and to show that any principle or rule of the common law is adopted here, it is not necessary to prove that it had been expressly adjudicated before the Revolution.^ Declaration of Rights, Article xiv., protecting the people from " unreasonable " searches and seizure of person and papers not supported by oath or affirmation, is not infringed by Rev. Sts. c. 142, § 1 (Gen. Sts. c. 170, § 1), authorizing search- 1 C. V. Look, 108 Mass. 452 (1871). * C. v. Parker, 2 Pick. 550 (1824). 2 C. V. Weatherhead, 110 Mass. 175 ^ C. v. Richards, 18 Pick. 434 (1836). (1872). 8 C.