Com. v. Anderson

• Decision Date: 11 January 1915
• Citation: 107 N.E. 523,220 Mass. 142
• Parties: COMMONWEALTH v. ANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 142

107 N.E. 523

COMMONWEALTH v. ANDERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 11, 1915

Jan 11, 1915.

COUNSEL

Thos D. Lavelle, Asst. Dist. Atty., of Boston, for the Commonwealth.

John P Feeney, of Boston, for defendant.

OPINION

CROSBY, J.

The defendant was convicted in the superior court upon a complaint charging her with maintaining a common nuisance, to wit, a certain tenement resorted to for the purposes of prostitution.

1. The defendant filed a plea in bar to the complaint on the ground that she had been previously acquitted of the same charge by the municipal court of the city of Boston. The commonwealth demurred to the plea, the demurrer was sustained, and the defendant ordered to answer over, to which ruling and order she duly excepted and from which she appealed.

The record shows that on January 13, 1914, the defendant was charged with maintaining a common nuisance, to wit, a house of ill fame between July 10, 1913, and January 10, 1914. To this charge she pleaded in bar a former conviction. The municipal court sustained the plea and dismissed the complaint on the ground that a portion of the time covered by the complaint was included in a previous complaint upon which she had been convicted.

The order sustaining the plea in bar in the second case does not in any way affect this third complaint, and so the order sustaining the demurrer to the plea in bar was correct.

The fact that this complaint covers a portion of the time included in the second complaint is immaterial. No part of the time covered by the first complaint under which the defendant was convicted is included in this complaint. The record shows that there was no trial of the second complaint upon the facts and merits, and so the acquittal of the defendant upon that charge is no bar to a subsequent prosecution and conviction under the present complaint.

'The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle prosequi of an indictment. By neither of these is the defendant acquitted of the offense charged against him, but he is only exempted from liability on that complaint or indictment.' Com. v. Bressant, 126 Mass. 246; R. L. c. 205, §§ 6, 7.

This conclusion is not at variance with Com. v. Robinson, 126 Mass. 259, 30 Am. Rep. 674, cited on the defendant's brief.

2. The record shows that one Jeremiah J. Riordan, a police sergeant, testified that he had a conversation with two police officers (Prempas and Swanson), in the presence of the defendant; that during the conversation he said to the defendant:

'You are still pursuing this line of business; I have cautioned you several times, but you still persist in doing it.'

He further testified that during the conversation above referred to he said to the defendant:

'You still persist in having these girls here; you have been doing business right along since the last time I had you in court; you have not let up a particle.'

This witness also testified that he asked Officer Prempas in the defendant's presence, 'What have you been doing here?' and that Prempas replied:

'I came here with Officer Swanson to have a good time; this defendant opened the door and admitted us; I asked her if she had any girls in the house. * * * She said, 'The girls are out now, but I will have some presently.' She went to the telephone and telephoned a couple of numbers. * * * We sat down in the back parlor and soon two girls came in. * * * As soon as she saw the officer going towards the door she called to the girls to 'Run, run out of the house, these are police officers.”

Police Officers Prempas and Swanson testified substantially to the conversation as recited by Sergeant Riordan. Sergeant Riordan further testified that the defendant denied each of these and all other statements and also said, 'No, there never were any girls in the house.' We do not recite all the conversation which Riordan testified took place in the presence of the defendant.

It appears from the bill of exceptions that before the witness Riordan testified as to this conversation the defendant objected 'to the introduction of this conversation with the defendant and officers, * * * and exception was allowed.' It also appears that afterwards the defendant moved that the testimony of the witness as to the...