Commonwealth v. Jacobs
| Decision Date | 23 October 1890 |
| Citation | 25 N.E. 463,152 Mass. 276 |
| Parties | COMMONWEALTH v. JACOBS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.A. Gaskill, Dist. Atty., for the Commonwealth.
John E. Sullivan and John Hopkins, for defendant.
In this commonwealth, several different substantive offenses may be included in different counts of the same indictment when they are of the same general nature, and when the mode of trial and the nature of the punishment are the same. Carlton v Com., 5 Metc. 532; Com. v. O'Connell, 12 Allen, 451; Com. v. Brown, 121 Mass. 69; Com. v Adams, 127 Mass. 15. The two offenses charged in this indictment are of a similar character, and punishable in the same way, and they fall within this rule. It is equally well settled that the same offense may be alleged in different counts of an indictment to have been committed in differents modes, and by different means, so as to meet different possible phases of the evidence. Pettes v. Com., 126 Mass. 242, and cases there cited. In applying the Statute of 1861, c. 181, (Pub.St. c. 213, § 18,) the court seems to have recognized the doctrine which is stated in Com. v McLaughlin, 12 Cush. 612, 615, and virtually to have held that, at the common law, different offenses, founded on the same facts, may be stated in different counts of an indictment, provided they are of the same general nature, and punishable in a similar way. Com. v. O'Connell, 12 Allen, 451; Com. v. Costello, 120 Mass. 358. See, also, Com. v. Cain, 102 Mass. 487. There is no reason in principle why this rule should not prevail. The statute referred to was not intended to impose upon the criminal pleader any new restrictions, and its principal, if not its only, purpose was to permit in different counts of an indictment the joinder of allegations of different offenses, founded on the same facts, when the offenses so differ in their nature, or are so differently punishable, that they could not have been joined prior to the enactment of the statute. The motion to quash was rightly overruled. The rule was well established, when questions of this kind were raised upon a motion in arrest of judgment, that misjoinder is cured by a verdict for the defendant on all but one of the counts; and it has since been laid down in cases in which this statute was invoked. Whether, if this case came within the statute, the rule should be treated as properly applicable to a case where the defendant is wrongly forced to a single trial upon different counts, which cannot legally be joined, it is unnecessary to decide. See Com. v. Packard, 5 Gray, 101; Com. v. Holmes, 103 Mass. 440; Com. v. Chase, 127 Mass. 14; Com. v. Adams, Id. 18.
The defendant's request for a ruling in relation to a variance was rightly refused. If the club which kept the place was the same that was incorporated under the name "Warren Social Club," there was evidence to warrant the jury in finding that it was as well known by the name "Warren Club" as by that under which it was incorporated, and the instructions were sufficiently favorable to the defendant.
To convict the defendant, it was not necessary to show that the sole purpose of the Warren Club was to sell, distribute, or dispense intoxicating liquors to its members or others. It was enough if one purpose for which it kept the tenement was so to use it illegally.
The evidence tended to show that the principal purpose for which the tenement was kept was to sell, distribute, or dispense intoxicating liquors. The only...
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