Com. v. Dunster

• Decision Date: 19 October 1887
• Parties: COMMONWEALTH v. DUNSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 101

13 N.E. 350

COMMONWEALTH v. DUNSTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1887

COUNSEL

J.E. Sullivan, for defendant.

OPINION

An offense is in its nature not divisible. It may consist of a single act, or of a series of acts, but that series of acts constitutes but one offense. This complaint, although it may be continuous in its nature, alleges but a single offense and the defendant can be punished only for one offense. The offense not being divisible, a nolle prosequi applied to any part of the complaint must apply to the whole. Com. v McMonagle, 1 Mass. 517; Com. v. Tuck, 20 Pick 356. The effect of permitting a nolle prosequi would be to allow the government to amend the complaint after the defendant has been once tried on it in the court below. The defendant who is mentioned in the plea in bar is the same defendant mentioned in this complaint. It is admitted that the tenement spoken of in this complaint, and in the plea in bar, is the same. This case would seem, then, to be similar to Com. v. Robinson, 126 Mass. 259, and the reasoning which applies to that case applies equally to this.

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

MORTON, C.J.

This is a complaint to the Central district court of Worcester, which charges that the defendant, "on the first day of May, in the year 1886, at Worcester, in said county, and on divers other days and times between that day and the seventeenth day of November, in the year 1886, did keep and maintain a certain tenement there situate, then and there used for the illegal sale and for the illegal keeping of intoxicating liquors." The defendant was convicted in the district court, and appealed to the superior court. In the latter court, before impaneling the jury, the district attorney indorsed on the back of the complaint the following: "Now, before the impaneling of the jury, I 'nol. pros.' so much of the within complaint as alleges any offense or unlawful act prior to October 5, 1886." The defendant objected to the district attorney's right to do this, and afterwards filed a plea in bar, setting up a former conviction under a complaint charging him with keeping and maintaining the same tenement from the first day of August, 1886, to the fourth day of October, 1886.

It is too clear to admit of any doubt that the defendant's former conviction was a bar to the present complaint, as it stood in the district court, as the complaints in this case embraced a portion of the time covered by the former complaint, and both complaints might be proved by the same evidence. The question is whether the district attorney after the case was entered in the superior court, could avoid the effect of the former conviction as a bar by entering a nolle prosequi in the manner attempted in this case. Where a complaint or indictment contains several counts, each charging an offense, it is within the power of the prosecuting officer, before the jury is impaneled, to nol. pros. either count. So, where two offenses are improperly charged in one count, he may nol. pros. one of them; and where, as in the exceptional case of burglary, both breaking and entering with intent to steal and larceny are properly charged in one count, he may nol. pros. either of the charges. And generally, where an offense is set out with aggravating circumstances which enlarge the offense, he may nol. pros. the aggravation, and obtain a conviction for the lesser offense which is well charged. Com. v. McMonagle, 1 Mass. 517; Com. v. Briggs, 7 Pick. 177; Com. v. Tuck, 20 Pick. 356; Com. v. Jenks, 1 Gray, 490; Com. v. Cain, 102 Mass. 487; Jennings v. Com., 105 Mass. 586; Com. v. Holmes, 119 Mass. 195; ...