Com. v. Cody
| Decision Date | 03 January 1896 |
| Citation | 42 N.E. 575,165 Mass. 133 |
| Parties | COMMONWEALTH v. CODY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M.J. Sughrue, Dist. Atty., for the Commonwealth.
F.F Sullivan, for defendant.
This is a petition to prove exceptions. The petitioner was convicted on the first count of an indictment containing three counts the second and third counts having been abandoned by the government at the close of the evidence, and before the case was submitted to the jury. The petitioner duly filed a bill of exceptions, which the chief justice of the superior court who presided at the trial, disallowed, at the same time allowing a substitute bill of exceptions, if the petitioner chose to adopt it by a certain time. This substitute bill was not adopted, and the present petition was filed in this court. It was referred to a commissioner, who has made his report; and his findings are, in substance, against the petitioner. The commissioner has found that the first seven paragraphs of the petitioner's bill are true, and that they do not differ materially from those in the bill which the judge was willing to allow, except that the latter bill did not allude to the proceedings upon a new trial, and that these are correctly stated in the petitioner's bill, so far as the same are now relied upon. By the direction of the court, the questions arising on the petition to prove the exceptions, and on the exceptions, if proved, were argued together. At the request of the petitioner's counsel, we have examined the stenographer's report of the evidence, and are satisfied with the correctness of the commissioner's findings.
1. The first exception relates to a plea in bar to which the government filed a demurrer, which was sustained by the court. The plea set forth that, on a previous indictment for the same offense, the petitioner was tried, and the jury, not being able to agree, were discharged, against his will and consent; that a second indictment was subsequently found for the same offense, and after this the indictment was found for which he is now on trial, the last two indictments being in substance the same as the first, except that they contain the words "maim and." It is further alleged that the petitioner had been once placed in jeopardy, and should not have been tried again. We are of opinion that the ruling of the court below was right. It is well settled in this commonwealth that the court, in its discretion, may discharge a jury where it is unable to agree, and that the person accused may be tried again by another jury. Com. v. Bowden, 9 Mass. 494; Com. v. Purchase, 2 Pick. 521; Com. v. Roby, 12 Pick. 496, 503; See, also, Com. v. Sholes, 13 Allen, 554; Com. v. McCormick, 130 Mass. 61; U.S. v. Perez, 9 Wheat. 579; Winsor v. Queen, L.R. 1 Q.B. 289, 390.
The defendant, however, contends that, if he could be tried again on the first indictment, he could not be tried upon the last indictment. But the pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause (Com. v. Drew, 3 Cush. 279); nor is it ground for a plea in bar (Com. v. Berry, 5 Gray, 93); nor for a motion in arrest of judgment ( Com. v. Murphy, 11 Cush. 472).
2. The defendant also filed a motion to quash the first count of the indictment. The principal objections urged to the form of this count are that while it is charged that the accused, at the time of committing the offense, was "armed with a dangerous weapon, to wit, a pistol, with intent," etc., it is not charged that the pistol was capped, loaded with ball, powder, or cartridges, or capable of being discharged; nor that the pistol was aimed at the person named in the indictment, or discharged, or used as a firearm or club; nor does it appear that the pistol was a dangerous weapon. This count in the indictment is framed under Pub.St. c. 202, § 22, which was first enacted by St.1818, c. 124, § 1, and has since been in force, with the exception that the punishment, which was by this statute death, was reduced by St.1839, c. 127, to imprisonment in the state prison for life. Rev.St. c. 125, § 13; Gen.St. c. 160, § 22. Soon after the passage of St.1818, a case arose under it, and an indictment was framed to which the one in the case at bar conforms, and under which the prisoner was convicted and executed. Com. v. Martin, 17 Mass. 359. This has been a recognized form ever since. Davis, Prec. No. 203; Train & H.Prec. 461, 462; 1 Whart.Prec. (4th Ed.) 411, 412. It has also been used in Com. v. Gallagher, 6 Metc. (Mass.) 565, and in Com. v. Mowry, 11 Allen, 20. We have no doubt that the indictment is sufficient in form. The gist of the offense is the being armed with a dangerous weapon. Com. v. Mowry, ubi supra, where it was held not to be necessary to allege either that the assault was committed with the dangerous weapon, or that the intent to kill or maim was to be carried out, in case of resistance, by means of such dangerous weapon. The indictment does not allege an assault with a pistol; and therefore it is unnecessary to allege how the weapon was used, or intended to be used.
The remaining question is whether it is sufficient to charge that the defendant was armed with a dangerous weapon, to wit, a pistol, without other allegations to show in what way it was dangerous. We have no doubt that the indictment is sufficient in this respect. It follows a well-established precedent, and is supported by authorities. U.S. v. Wood, 3 Wash.C.C. 440, 442, Fed.Cas. No. 16,756; U.S. v. Wilson, Baldw. 78, 99, Fed.Cas. No. 16,730; Allen v. People 82 Ill. 610.
A further ground urged in support of the motion to quash is that the indictment is vague, indefinite, and uncertain, under article 12 of the declaration of rights. This is disposed of by the case of Com. v. Robertson, 162 Mass. 90, 38 N.E. 25. [1]
3. After a verdict of guilty in the court below, the petitioner filed a motion for a new trial, on the grounds that the verdict was against the law, the evidence, and the weight of the evidence; also, on the ground that the indictment charged him with having committed two distinct offenses, and with being an habitual criminal, and because the evidence relating to the last count was introduced by the government, and then withdrawn from the consideration of the jury; that this action on the part of the government made part of its case the bad character of the defendant, and deprived him of his constitutional right in taking the initiative in the introduction of evidence to prove his character. It appears from the certificate of the chief justice that the defendant elected to preserve his remedy, if he had any, before the supreme judicial court, as to the questions of law contained in his motion, and that,...
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