Com. v. Goulet
| Decision Date | 02 January 1894 |
| Citation | 160 Mass. 276,35 N.E. 780 |
| Parties | COMMONWEALTH v. GOULET. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.J. Dowd, for appellant.
Robert O. Harris, for the Commonwealth.
The present complaint is for unlawfully exposing intoxicating liquors for sale on November 20, 1892. The defendant has been acquitted on a former complaint for a similar offense alleged and committed on July 1, 1892, and on divers days and times between that day and November 21, 1892. On the face of it, the last-mentioned complaint excludes November 21, (Com. v. Connors, 116 Mass. 35; Com. v. Robinson, 126 Mass. 289, 264; Com. v. Moore, 147 Mass. 528, 18 N.E. 403; Com. v. Carney, 152 Mass. 566, 568, 26 N.E. 94,) but includes every moment of November 20th, and therefore the acquittal upon it is a bar to the one before us, inasmuch as it is a bar in respect of the whole of the offense set out in the complaint, (Com. v. Dunster, 145 Mass. 101, 103, 13 N.E. 350.)
It appears, however, that the former complaint was received and sworn to on November 20th; and it is urged, as a consequence, 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 the objection is met by Pub.St. c. 200, § 6, that "no person shall be held to answer on a second indictment for an offense of which he has been acquitted by a jury upon the facts and merits; but such acquittal may be pleaded by him in bar of any subsequent prosecution for the same offense, notwithstanding any defect in the form or substance of the indictment on which he was acquitted." The word "indictment," in this statute, includes complaint. Com. v. Gillon, 2 Allen, 502.
It was agreed at the trial of this case that at the trial of the former one the presiding justice, at the request of the defendant, excluded any evidence against the defendant concerning November 20th, but that makes no difference. The offense charged was an indivisible offense, and the defendant was acquitted of the whole of it. Com. v. Robinson, 126 Mass. 259, 263; Com. v. Dunster, 145 Mass. 101, 13 N.E. 350; Com. v. Le Clair, 147 Mass. 539, 540, 18 N.E. 428.
Verdict set aside.
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Commonwealth v. Town of Hudson
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...See Commonwealth v. Connors, 116 Mass. 35; Commonwealth v. Robinson, 126 Mass. 259; Commonwealth v. Dunster, 145 Mass. 101; Commonwealth v. Goulet, 160 Mass. 276; Commonwealth v. Peretz, 212 Mass. 253 , Commonwealth v. Runge, 231 Mass. 598 . Of course attachment of the person is impossible ......
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... ... another prosecution for a like offense during another ... specified time which includes any part of the time named in ... the first charge. Com. v. Robinson, 126 Mass. 259, ... 30 Am. Rep. 674, and cases cited; Com. v. Dunster, ... 145 Mass. 101, 13 N.E. 350; Com. v. Goulet, 160 ... Mass. 276, 35 N.E. 780 ... We do ... not doubt that the offense here charged may be continuous in ... its nature, although it may be that it could be committed ... also by a single act of deriving one's support in part ... from the prohibited source. Com. v. Pray, ... ...
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