Com. v. Matthews

• Decision Date: 24 November 1896
• Citation: 167 Mass. 173,45 N.E. 92
• Parties: COMMONWEALTH v. MATTHEWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 173

45 N.E. 92

COMMONWEALTH v. MATTHEWS.

Supreme Judicial Court of Massachusetts, Plymouth.

November 24, 1896

COUNSEL

Hosea

Kingman, for defendant.

Robert O. Harris, Dist. Atty., for the Commonwealth.

OPINION

LATHROP J.

The defendant was indicted in Plymouth county for keeping and maintaining at Brockton, in that county, a common nuisance namely, a tenement used for the illegal sale, and illegal keeping for sale, of intoxicating liquors. At the trial there was no evidence tending to show the keeping of any tenement by the defendant in Brockton, but there was evidence tending to show the keeping of a tenement by him, for the illegal purposes alleged, in Easton, in the county of Bristol, but within 100 rods of the boundary line between said counties. The defendant excepted to the admission of the evidence, and also to the refusal of the court to instruct the jury to return a verdict of not guilty, by reason of a variance; and the case comes before us on these exceptions, the defendant having been found guilty.

The precise question presented in this case has not been decided. There is no doubt that the offense charged in the indictment is a local offense, and ordinarily the place must be proved as laid. Thus, if such offense is alleged to have been committed at a town named, and the entire tenement is shown to have been in another town, both towns being in the same county, there is a variance, and the defendant cannot be convicted. Com. v. Heffron, 102 Mass. 148; Com v. Bacon, 108 Mass. 26; Com. v. Hersey, 144 Mass. 297, 11 N.E. 116. The question then arises how far is this rule affected by the provisions of the Public Statutes (chapter 213, § 19), which are as follows: "An offence committed on the boundary line of two counties, or within one hundred rods of such line, may be alleged to have been committed, and may be prosecuted and punished, in either county." In Com. v. Gillon, 2 Allen, 502, the defendant was convicted before the police court of Milford on a complaint which charged him with a single sale of intoxicating liquor at Milford, in the county of Worcester. On appeal it appeared that the sale was in fact made at Holliston, in the county of Middlesex, but within 100 rods of the boundary line between the two counties. It was held that the police court of Milford had jurisdiction of the offense charged, and that the complaint need not set forth, as the place of the commission of the offense, that it was on the boundary line of the counties of Worcester and Middlesex, and within 100 rods of the dividing line between them. It is to be noticed that in the case last cited the offense was not a local offense, and it was not necessary to prove that it...