Com. v. Carney
| Citation | 153 Mass. 444,27 N.E. 9 |
| Parties | COMMONWEALTH v. CARNEY. |
| Decision Date | 01 April 1891 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Exceptions from superior court, Middlesex county ROBERT R. BISHOP, Judge.
A.J Waterman, for the Commonwealth.
J.L O'Neil, for defendant.
The defendant in this case was charged with the illegal keeping of intoxicating liquor with intent to sell it. The case was heard in the first district court of Southern Middlesex before LUCIUS H. WAKEFIELD, first special justice of the court, who found the defendant guilty. The defendant appealed, and was tried in the superior court, and a verdict of guilty rendered against him. After the verdict in the superior court, and before judgment, the defendant moved in arrest of judgment, on the ground that the copy of the record which was sent up from the district court did not show that the first special justice had authority to act. Thereupon the district attorney asked for leave to introduce an amended copy of the record of the proceedings in the district court. The defendant objected, but the motion was granted, and the amendment allowed, and the defendant excepted. In the copy of the record on which the case was tried in the superior court it appeared that the defendant was brought before "the first district court of Southern Middlesex, *** LUCIUS H WAKEFIELD, first special justice of said court, present and holding the court." In the amended record this was changed so as to read: "LUCIUS H. WAKEFIELD, Esquire, first special justice of said court, present and holding the court, in the absence of WILLIS A. KINGSBURY, Esquire, justice of said court." It has often been held, in an appealed criminal case, where there is an error in the copy of the record of the proceedings in the court below, an amended copy may be filed at any time before the case is submitted to the jury. Com. v. Phillips, 11 Pick. 28; Com. v. Wiggin, 111 Mass. 428; Com. v. Foynes, 126 Mass. 267; Com. v. Sullivan, 138 Mass. 191; Com. v. Kelley, 12 Gray, 123; Com. v. Magoun, 14 Gray, 398. The effect of such an amendment upon the question, relating merely to the jurisdiction of the court, is, if the amended record shows jurisdiction, not only to establish the jurisdiction of the court from the time when the amendment is made, but to show that there was jurisdiction from the beginning, and to establish the validity of everything properly done under the jurisdiction as it then appears. In the present case no objection was raised to any of the proceedings until after the jury had rendered their verdict. Then a motion in arrest of judgment was made, on the ground that it did not appear from the record that the special justice was authorized to act at the trial in the district court. This defect, if it had not been remedied, would have been fatal to the proceedings. Com. v. Fay, 151 Mass. 380, 24 N.E. 201. But a motion in arrest of judgment can only be allowed for a cause affecting the jurisdiction of the court. Pub.St. c. 214, § 27; Com. v. Brown, 150 Mass. 334, 23 N.E. 98. Then for the first time the defendant raised the question whether the court had jurisdiction. This question was to be determined by the record of the case. But it was to be determined by the true record, and not by a false one. If the record was then incorrect, it was proper for the court, at any time before the hearing or trial upon the question then raised, to allow it to be amended. The rule that any amen...
To continue reading
Request your trial