Com. v. McClaine

Decision Date30 April 1975
Citation326 N.E.2d 894,367 Mass. 559
PartiesCOMMONWEALTH v. Claude McCLAINE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William A. Nelson, Boston (Patricia A. O'Neill, Milton, with him) for defendant.

Alvin J. Brody, Special Asst. Dist. Atty. (David G. Eisenstadt, Asst. Dist. Atty., with him) for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

REARDON, Justice.

A complaint was brought against the defendant alleging that on a date certain he 'did then and there commit open and gross lewdness and lascivious behaviour in the presence of one Irving MacGregor.' On a hearing of the complaint the defendant, having pleaded not guilty, was found guilty and sentenced to one year in the house of correction. He appealed to the Superior Court where he moved to dismiss the matter against him on the ground that 'Chapter 272, Section 53 fails to define with specific particularity the proscribed conduct and is therefore unconstitutionally vague in violation of the Massachusetts and United States Constitutions.' The motion was denied. Thereafter the defendant, following trial in the Superior Court, was found guilty and was given a six-month suspended sentence in the house of correction with probation for one year.

Elaborate argument is made here that the defendant, as stated in the bill of exceptions, was charged under G.L. c. 272, § 53, which proscribes 'lewd, wanton and lascivious persons in speech or behavior,' and that § 53 is unconstitutionally vague. The principal briefs of both parties argue the issue of constitutionality of that section on First Amendment of the United States Constitution and other grounds. However, the record of the Municipal Court of the City of Boston discloses that the defendant was convicted of 'open and gross lewdness and lascivious behaviour,' the exact language of G.L. c. 272, § 16. The same language was used in the complaint. As the Commonwealth points out, it is the substance of the complaint that governs, and that is determined by the language in the body of the complaint itself. Commonwealth v. Brown, 116 Mass. 339, 340 (1874). Commonwealth v. Jarrett, 359 Mass. 491, 495--496, 269 N.E.2d 657 (1971). A complaint phrased in the statutory form, as was this complaint, is sufficiently detailed to apprise the defendant of the particular offense charged. G.L. c. 277, § 79. Commonwealth v. Bloomberg, 302 Mass. 349, 355, 19 N.E.2d 62 (1939). Commonwealth v. Benjamin, 358 Mass. 672, 676, 266 N.E.2d 662 (1971). Commonwealth v. Hare, --- Mass. ---, --- - ---, a 280 N.E.2d 138 (1972...

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16 cases
  • Com. v. Michaud
    • United States
    • Appeals Court of Massachusetts
    • December 2, 1982
    ...is not open to dismissal. Compare Commonwealth v. Benjamin, 358 Mass. 672, 675-676, 266 N.E.2d 662 (1971); Commonwealth v. McClaine, 367 Mass. 559, 560, 326 N.E.2d 894 (1975). The language in the forms set out in § 79, and in particular the form followed in this case, does not create or def......
  • Com. v. Gonzalez
    • United States
    • Appeals Court of Massachusetts
    • May 30, 1986
    ...obtained by requiring a bill of particulars." G.L. c. 277, § 34, as appearing in St. 1979, c. 344, § 34. See Commonwealth v. McClaine, 367 Mass. 559, 560, 326 N.E.2d 894 (1975); Commonwealth v. Soule, 6 Mass.App.Ct. 973, 973-974, 384 N.E.2d 235 (1979). See generally Smith, Criminal Practice......
  • Com. v. Lovett
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 16, 1978
    ...however, as to the offense alleged thereby. The text of the allegation determines the nature of the complaint. Commonwealth v. McClaine, 367 Mass. 559, 326 N.E.2d 894 (1975). Here the language in the body of the complaint alleges that the defendant committed unarmed burglary of a dwelling h......
  • Com. v. Donoghue
    • United States
    • Appeals Court of Massachusetts
    • January 28, 1987
    ...to plead an acquittal or conviction in bar of future prosecution for the same offense. See G.L. c. 277, § 34; Commonwealth v. McClaine, 367 Mass. 559, 560, 326 N.E.2d 894 (1975); Commonwealth v. Soule, 6 Mass.App.Ct. 973, 973-974, 384 N.E.2d 235 (1979). See generally Smith, Criminal Practic......
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