107 Mass. 243 (Mass. 1871), Commonwealth v. Dougherty

Citation:107 Mass. 243
Opinion Judge:Morton, J. Morton, J.
Party Name:Commonwealth v. Robert Dougherty. Same v. Same
Attorney:T. P. Pingree & J. M. Barker, for the defendant. C. Allen, Attorney General, for the Commonwealth.
Court:Supreme Judicial Court of Massachusetts

Page 243

107 Mass. 243 (Mass. 1871)



Robert Dougherty.




Supreme Court of Massachusetts, Berkshire

September, 1871

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[Syllabus Material]

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Two complaints to the district court of central Berkshire, for assault and battery of John McCarthy; the first offence averred to have been committed in a church building, and the second in a burial ground. The defendant was found guilty on both, and appealed. At the trial of the first complaint, in the superior court, on the appeal, before Reed, J., there was evidence of these facts:

The defendant was sexton of the Roman Catholic church building in Pittsfield, and in that capacity had charge of the building and of the conduct of funerals in it. He was also an undertaker. It was the rule concerning funerals in the building, that the priest or the sexton should be informed of the death, and of the desire of the friends of the deceased that funeral services should be performed there; upon receiving such notice, either the priest or the sexton would fix a time for such services, to avoid interference with the other exercises of the church; and it was the sexton's duty to take charge of the funeral procession, when it reached the door of the building, and to precede the bearers of the corpse up the aisle, superintend the deposit of the bier in the place provided for it, seat the mourners, and then, if the priest was not present, call him.

On Sunday, May 17, 1870, at the close of a religious service in the building, and after the congregation had been dismissed, but while some of them were lingering at prayer within the building, John McCarthy, an undertaker who had recently set up in business in Pittsfield, came to the building in charge of a funeral of which no previous notice had been given, and attempted to enter and perform the duties of the sexton in regard to it. Upon McCarthy's arrival at the vestibule, the defendant, who was seated at a desk within the door, forbade him to proceed with the funeral in the building. But McCarthy persisted in his attempt, marched up the aisle with his procession, and was directing one Tim Powers where to put the bier, when the defendant "came down the aisle, and told him to go out of the church, and forcibly removed him, but without more force than was necessary to eject him from the building."

Upon these facts the defendant requested a ruling that he was entitled to an acquittal, which the judge refused, whereupon by consent of the defendant a verdict of guilty was returned and the case reported for the revision of this court.

Judgment on the verdict.

T. P. Pingree & J. M. Barker, for the defendant. The facts justify the defendant. As sexton in charge, it was his duty to keep order in the building, and enforce the rules established for its use and for the government of persons entering it. No license is shown authorizing any person to enter or remain in it except on compliance with the rules. McCarthy entered in violation of them, not as a mourner or worshipper, but in the exercise of his trade, and persisted in remaining and violating them after he had been forbidden and been told to leave. It then became the defendant's duty to remove him, and he performed it without unnecessary force.

Any person lawfully in possession of a building, for himself or as the agent or servant of the owner, may, after requesting a stranger to withdraw from the premises, use force to remove him, if he neglects or refuses to leave. Commonwealth v. Clark, 2 Met. 23, 25. Commonwealth v. Power, 7 Met. 596. Com. Dig. Pleader, 3 M...

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