Com. v. Downing
| Decision Date | 27 November 1889 |
| Citation | 22 N.E. 912,150 Mass. 197 |
| Parties | COMMONWEALTH v. DOWNING. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.J. Waterman, Atty.Gen., and H.A. Wyman Asst.Atty.Gen., for the Commonwealth.
Henry O. Downing, pro se.
The questions which the defendant seeks to present by his appeal from the order of the superior court overruling what he terms his "demurrer to the jurisdiction of the court, and plea in bar by estoppel," are not stated in accordance with any known rules of pleading, nor even intelligibility. Without regard to the form of his demurrer, its manifest irregularities, or the mode in which defendant seeks to bring his case before us, we cannot find, on careful examination that any injustice has been done him in the superior court. In the first case the defendant had been convicted of drunkenness before a magistrate, and had appealed from such conviction to the superior court, and since the overruling of his demurrer has been convicted of the same offense in that court. His demurrer sets forth that it is unlawful to try a person twice for the same offense, and that it is unlawful to imprison him more than 30 days for the simple offense of drunkenness. The defendant does not state when or where he was before tried for the same offense, but evidently refers to his previous trial by the inferior court. The defendant by his appeal vacated the decision and sentence of that court, and he has not yet been sentenced in the superior court. He has undergone no punishment and no imprisonment for his offense. His detention in the jail from a failure to give the bail required has been only that he might be present before the court to which he appealed. At the time he filed the so-called demurrer, he had not been tried a second time for the same offense, and when he was afterwards tried in the superior court he was not, within the meaning of the law, put in jeopardy twice, as his first conviction had been vacated by his own appeal.
The defendant then alleges that at a former trial the complainant then swore that he had never seen the defendant use intoxicating liquor. If complainant, as a witness, should testify at one trial in a manner different from that in which he should testify at the subsequent trial, this would be a matter which might affect his credibility, but would not render the complaint demurrable; nor would it be a foundation for a plea in bar.
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...47, 82 L.Ed. 560; Malone v. State, 179 Ind. 184, 100 N.E. 567; Keifner v. Commonwealth, 205 Ky. 634, 266 S.W. 354; Commonwealth v. Downing, 150 Mass. 197, 22 N.E. 912; State v. Diggins, 95 R.I. 166, 185 A.2d ...
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State v. Cook
...194, 60 A. 98. 'The defendant by his appeal vacated the decision and sentence of that court (lower court) * * *.' Commonwealth v. Downing, 150 Mass. 197, 22 N.E. 912, 913. The appeal, in fact, is more than a stay of the judgment of conviction before the Municipal Court. It vacates that judg......
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State v. Diggins, 10377
...based on a conviction for the same offense does not constitute double jeopardy unless the former conviction was final. Commonwealth v. Downing, 150 Mass. 197, 22 N.E. 912. 15 Am.Jur., Criminal Law, § 378. State ex rel. Steffes v. Risjord, 228 Wis. 535, 541, 280 N.W. 680. The conviction of t......