Com. v. Clark

• Decision Date: 22 November 1887
• Citation: Com. v. Clark, 145 Mass. 251, 13 N.E. 888 (Mass. 1887)
• Parties: COMMONWEALTH v. CLARK and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 251

13 N.E. 888

COMMONWEALTH v. CLARK and another.

Supreme Judicial Court of Massachusetts, Essex.

November 22, 1887

COUNSEL

George W. Searle, W.W. French, and H.A. Woods, for defendant.

The defendant's motion to quash the complaint should have been sustained.It is wholly uncertain whether the complaint is under Pub.St. c. 101, § 6, or under Pub.St. c. 207, § 13; and, when such is the case, a complaint is fatally wanting in certainty.The complaint uses the words "so used," but entirely omits the statutory words of chapter 101, § 6"resorted to."There is also a fatal ambiguity as to what statutethe defendants are charged with violating.The complaint improperly extended the continuando beyond July 1, 1886.Six months is the established and reasonable limit of a continuando, and any expansion of that limit is unreasonable and improper.The testimony of Sullivan as to the two women extended in time beyond the proper limitation of six months; and, besides, their reputation in Gloucester for chastity was incompetent.The questions put to Clark in cross-examination, in regard to a period anterior to January 1, 1886, were incompetent; and, besides, it was an immaterial and collateral point, and, on his negative answer was conclusive.The entries in the books from September 1885, to January 1, 1886, were incompetent and immaterial for any purpose.The questions in regard to Coombs, etc., were alike incompetent and inadmissible.The conduct of the court in first admitting the books, and then not sending them to the jury-room, was equivocal, contradictory, and absurd.If they were evidence, they should have gone to the jury-room for inspection, examination, and consideration.By accepting the invitation to send them, the defendant must have waived his objection to their competency, and his counsel had no office to consent to illegal testimony against his client.No rule of practice requires a request to be handed in before it is made necessary, by the use made of a piece of testimony, by the opposing party.The motion of Wetmore to quash the complaint should have been sustained, for the reasons herein stated, in support of Clark's motion to quash.

Andrew J. Waterman, Atty. Gen., for the Commonwealth.

The motion to quash the complaint was properly overruled.The complaint is in the language of the statute, and the offense is "fully, directly, and expressly alleged, without any uncertainty or ambiguity."Com. v. Richardson,142 Mass. 75, 7 N.E. 26;Com. v. Ashley, 2 Gray, 357;Com. v. Welsh, 7 Gray, 324;Com. v. Barrett,108 Mass. 302;Com. v. Tiffany,119 Mass. 300."The allegation of various purposes for which the premises were used, constituted the means by which the nuisance was created," and does not render the complaint bad for duplicity.Com. v. Kimball, 7 Gray, 330;Com. v. Ismahl,134 Mass. 201;Com. v. Ballou,124 Mass. 26.The tenement and locality were sufficiently described.Com. v. Lamb, 1 Gray, 495;Com. v. Hersey,144 Mass. 298, 11 N.E. 116;Com. v. Bennett,108 Mass. 29;Com. v. Logan,12 Gray, 138.

It was competent, on cross-examination of Clark, to inquire what were his relations to the place immediately before the period of the alleged offense.Com. v. Haher,113 Mass. 207;Com. v. Kelley, 116 Mass. 341;Com. v. Dearborn, 109 Mass. 369;Com. v. Stoehr, Id. 365.And in this field to inquire as to previous statements or entries of his, in writing; and to offer such writing in evidence.Rosc.Crim.Ev. 132.The refusal of the presiding judge to comply with requests of counsel for defendant as to argument of counsel for commonwealth was a matter within the discretion of the judge in the conduct of the trial.The request to charge respecting testimony relating to the woman from Boston was not timely made, and otherwise was properly refused.Proof of the reputation of women who frequent a house is pertinent to establish the character of the house.Com. v. Kimball, 7 Gray, 330;Com. v. Gannett, 1 Allen, 7;Com. v. Connors,116 Mass. 35.The evidence offered in the testimony of Michael J. Sullivan was within the period specified in the complaint, and was properly admitted.

OPINION

C. ALLEN, J.

1.The motion to quash was properly overruled.The complaint was sufficient, under Pub.St. c. 101, § 6. Com. v. Ballou,124 Mass. 26.

2.The objection that the time of the continuance of the offense, as alleged in the complaint, was too long, cannot prevail.The defendant cites no authority in support of his view, that six months is the longest time that can be legally covered by a complaint.He might have moved for a specification of particulars.SeeCom. v. Giles, 1 Gray, 466, where the offense was alleged to have extended over a period of 16 months.

3.The testimony as to the reputation for chastity in Gloucester of the three women who were found in the house was competent.Their general reputation in Gloucester was fairly implied; and the question could not reasonably be supposed, as the defendant argues, to call merely for the individual opinion of the witness.

4.It was entirely competent for the court to allow a general cross-examination of the defendant Clark, as to his relations to the house prior to the time charged in the complaint.He had testified in chief that "he had never had any interest in any sale of liquor, or at any time, on these premises."The cross-examination was...