Com. v. Green
| Decision Date | 08 April 1987 |
| Citation | 505 N.E.2d 886,399 Mass. 565 |
| Parties | COMMONWEALTH v. John GREEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dyanne Klein Polatin, Asst. Dist. Atty., for the Com.
Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for defendant.
Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.
A District Court judge allowed the defendant's motion to dismiss a complaint which charged him with indecent assault and battery on a child under the age of fourteen. The judge ordered dismissal because the complaint failed to state a crime. The Commonwealth appealed, and we allowed the parties' joint application for direct appellate review. We now vacate the order of dismissal.
The relevant facts are as follows. In June, 1984, the defendant was charged with indecent assault and battery on a child under fourteen in violation of G.L. c. 265, § 13B (1984 ed.). The defendant was found guilty at a bench trial in the District Court. The defendant appealed to a jury of six session for a trial de novo and in that session moved to dismiss the complaint on the ground that it failed to state a crime. The judge allowed the motion because the complaint failed to allege the lack of consent of the victim. At the time the complaint issued, lack of consent was an element of the crime which the Commonwealth was required to prove in a prosecution for a violation of G.L. c. 265, § 13B. Commonwealth v. Burke, 390 Mass. 480, 487-488, 457 N.E.2d 622 (1983). The Legislature has since amended G.L. c. 265, § 13B, so that lack of consent is no longer an element of the crime. St.1986, c. 187. However, since lack of consent was an element of the crime at the time the complaint issued, the defendant argues that the complaint should have alleged lack of consent. We disagree.
Article 12 of the Massachusetts Declaration of Rights states that "[n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him." In order to comply with this constitutional mandate, the complaint or indictment must contain a "plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof." Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). A complaint will not be dismissed if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him. See Commonwealth v. Welansky, 316 Mass. 383, 395-396, 55 N.E.2d 902 (1944). It is not necessary for the Commonweath to set forth in the complaint or indictment every element of the crime to withstand a motion to dismiss. For example, in a complaint for larceny, it is sufficient to allege that the defendant "did steal" property. See G.L. c. 277, § 79 (1984 ed.). The elements of larceny (e.g., taking and carrying away, etc.) need not be enumerated. To say that the Commonwealth must prove lack of consent (as it must) adds nothing to the Commonwealth's pleading obligation.
In the present case, we hold that the complaint gave the defendant notice of the charge sufficient to comply with both art. 12 and Mass.R.Crim.P. 4(a). The complaint charges that the defendant "[d]id indecently assault and beat [the victim] a child under the age of fourteen years." It would be redundant to require the complaint to charge further that the defendant assaulted and beat the victim without the victim's consent. The element of lack of consent is implicit in the legal definition of both assault and battery and indecent assault and battery. Black's Law Dictionary 105, 139, 691 (5th ed. 1979). The legal term, "indecent assault and battery," gave the defendant a "plain, concise description" of the charge against him as required by Mass.R.Crim.P. 4(a).
We note that the language of the instant complaint is very similar to the language prescribed for an assault and battery complaint in the statutory form. G.L. c. 277, § 79 (1984...
To continue reading
Request your trial
-
Commonwealth v. Sullivan
...it is acceptable for the indictment to contain “an appropriate legal term descriptive” of the criminal act. Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987), quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). Thus in Green, it was held sufficient to allege that the defe......
-
Com. v. Buckley
...denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281, 120 S.Ct. 2755, 147 L.Ed.2d 1017 (2000), quoting from Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). "It is not necessary for the Commonwealth to set forth in the complaint or indictment every element of the crime ......
-
Commonwealth v. St. Hilaire
...of the defendant's guilt.10 The lack of consent is an implicit factor in other contexts as well. See, e.g., Commonwealth v. Green, 399 Mass. 565, 567, 505 N.E.2d 886 (1987) (lack of consent implicit in legal definition of both assault and battery and indecent assault and battery).11 Our vie......
-
Com. v. Benoit, 88-P-316
...nonharmful battery and that the common law also did not establish any other legal age of consent. 1 Ibid. See Commonwealth v. Green, 399 Mass. 565, 566-567, 505 N.E.2d 886 (1987). Accordingly, the passage from Burke relied upon by the defendant which states that "[t]he capacity to consent t......