Com. v. Le Clair
| Decision Date | 22 October 1888 |
| Citation | 18 N.E. 428,147 Mass. 539 |
| Parties | COMMONWEALTH v. LE CLAIR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thayer & Rugg, for defendant.
A.J Waterman, Atty. Gen., for the Commonwealth.
When an appeal is taken from the sentence of a trial justice in a criminal case, it is the duty of the justice to transmit to the superior court a copy of the conviction and other proceedings in the case. Pub.St. c. 155, § 60. The superior court can try the defendant for the offense set out in the copy of the complaint transmitted to it, and for no other offense. If there is an error in the copy, the trial justice may transmit an amended and correct copy at any time before the trial in the superior court. He cannot do so afterwards so as to make good the conviction of the defendant. Com v. Foynes, 126 Mass. 267, and cases cited; Com. v Kelly, 12 Gray, 123. In the case at bar the copy of the complaint transmitted to the superior court, upon which he was tried in that court, charges the defendant with keeping a tenement used for the illegal keeping and sale of intoxicating liquor, "on the 1st day of August, in the year of our Lord one thousand eight hundred and eighty-seven, at Brookfield, in said county, and on divers other days and times between that day and the 1st day of August, in the year eighteen hundred and eighty-eight." The complaint is subscribed and shown to on the 12th day of January, 1888. The offense for which the defendant was tried is a single, indivisible offense, and might be supported by proof of illegally maintaining the tenement at any time between January 12, 1888, and August 1, 1888. The allegation of time is essential and material, defining the offense. It is different from the offense of maintaining a tenement from August 1, 1887, to January 12, 1888. Com. v Dunster, 145 Mass. 101, 13 N.E. 350, and cases cited. A man is not liable for an offense until he has committed it. The copy of the complaint upon which the superior court acted sets forth no legal offense, and neither the trial justice nor the superior court had jurisdiction to try the offense alleged in it. Com. v. Doyle, 110 Mass. 103. The defendant's objection is not for any formal defect, but it affects the jurisdiction of the court, and is open to the defendant after verdict. McQuade v. O'Neil, 15 Gray, 52; Com. v. Galligan, 113 Mass. 203; Com. v. Hinds, 101 Mass. 209. But it does not...
To continue reading
Request your trial
-
Commonwealth v. Duggan
...which the appeal was taken. Commonwealth v. Foynes, 126 Mass. 267;Commonwealth v. Carney, 153 Mass. 444, 27 N. E. 9;Commonwealth v. Le Clair, 147 Mass. 539, 18 N. E. 428. The conclusion that the defendant was not tried in the superior court on the same complaint on which he had been tried i......
-
Com. v. Goulet
...that the complaint was bad, as alleging an indivisible offense continuing after the filing of the complaint. Com. v. Le Clair, 147 Mass. 539, 540, 18 N.E. 428. The court are not disposed to distinguish that case, but objection is met by Pub.St. c. 200, § 6, that "no person shall be held to ......
-
Commonwealth v. Bickum
...could have been had on that count, but both offenses might have been described in separate counts in the second complaint. Com. v. Le Clair, 147 Mass. 539, 18 N.E.Rep. 428; Com. v. Doyle, 110 Mass. 103. The attorney general has cited no precedent in this commonwealth for the practice adopte......
-
Commonwealth v. Bickum
...could have been had on that count, but both offenses might have been described in separate counts in the second complaint. Com. v. Le Clair, 147 Mass. 539, 18 N.E. 428; Com. v. Doyle, 110 Mass. 103. The attorney has cited no precedent in this commonwealth for the practice adopted in this ca......