399 Mass. 565 (1987), Commonwealth v. Green

Citation399 Mass. 565, 505 N.E.2d 886
Party NameCOMMONWEALTH v. John GREEN.
Case DateApril 08, 1987
CourtSupreme Judicial Court of Massachusetts

Page 565

399 Mass. 565 (1987)

505 N.E.2d 886

COMMONWEALTH

v.

John GREEN.

Supreme Judicial Court of Massachusetts, Essex.

April 8, 1987

Argued March 2, 1987.

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.

NOLAN, Justice.

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.

Page 566

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. [505 N.E.2d 887] 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...

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36 practice notes
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • 22 Diciembre 2004
    ...Mr. Cadieux pleaded guilty to this crime in 1983, an absence of his victims' consent was an element of the crime. Commonwealth v. Green, 399 Mass. 565, 505 N.E.2d 886, 886 (1987) (As of June, 1984, lack of consent "was an element of the crime which the Commonwealth was required to prov......
  • 33 Mass.App.Ct. 7 (1992), 90-P-1204, Commonwealth v. Watkins
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 14 Julio 1992
    ...259, 266-268, 93 N.E. 809 (1911), aff'd, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038 (1912), to, more recently, Commonwealth v. Green, 399 Mass. 565, 566-568, 505 N.E.2d 886 (1987), and Commonwealth v. Robertson, 408 Mass. 747, 749, 563 N.E.2d 223 (1990). See Smith, Criminal Practice & Pr......
  • 37 Mass.App.Ct. 964 (1994), 93-P-650, Commonwealth v. Shelton
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 12 Diciembre 1994
    ...to show a violation of law and to permit the defendant to know the nature of the accusation against him." Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). Nor should a defendant be acquitted on the ground of variance if the essential elements of the crime are correctly......
  • 405 Mass. 238 (1989), Commonwealth v. Cantres
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 22 Junio 1989
    ...the crime or an appropriate legal term descriptive thereof.' Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979)." Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). In Commonwealth v. Soule, 6 Mass.App.Ct. 973, 973-974, 384 N.E.2d 235 (1979), the Appeals Court considered an indic......
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36 cases
  • 350 F.Supp.2d 275 (D.Me. 2004), CR-03-41, United States v. Cadieux
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Court (Maine)
    • 22 Diciembre 2004
    ...Mr. Cadieux pleaded guilty to this crime in 1983, an absence of his victims' consent was an element of the crime. Commonwealth v. Green, 399 Mass. 565, 505 N.E.2d 886, 886 (1987) (As of June, 1984, lack of consent "was an element of the crime which the Commonwealth was required to prov......
  • 33 Mass.App.Ct. 7 (1992), 90-P-1204, Commonwealth v. Watkins
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 14 Julio 1992
    ...259, 266-268, 93 N.E. 809 (1911), aff'd, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038 (1912), to, more recently, Commonwealth v. Green, 399 Mass. 565, 566-568, 505 N.E.2d 886 (1987), and Commonwealth v. Robertson, 408 Mass. 747, 749, 563 N.E.2d 223 (1990). See Smith, Criminal Practice & Pr......
  • 37 Mass.App.Ct. 964 (1994), 93-P-650, Commonwealth v. Shelton
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • 12 Diciembre 1994
    ...to show a violation of law and to permit the defendant to know the nature of the accusation against him." Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). Nor should a defendant be acquitted on the ground of variance if the essential elements of the crime are correctly......
  • 405 Mass. 238 (1989), Commonwealth v. Cantres
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 22 Junio 1989
    ...the crime or an appropriate legal term descriptive thereof.' Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979)." Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987). In Commonwealth v. Soule, 6 Mass.App.Ct. 973, 973-974, 384 N.E.2d 235 (1979), the Appeals Court considered an indic......
  • Request a trial to view additional results