Com. v. Peretz

Decision Date04 June 1912
Citation98 N.E. 1054,212 Mass. 253
PartiesCOMMONWEALTH v. PERETZ.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

A. C. Webber, Asst. Dist. Atty., for the Commonwealth.

Wm. R Scharton and John F. Barry, for defendant.

OPINION

SHELDON J.

The first and most serious objection to the validity of this indictment is that it charges the offense to have been committed 'during the three months next preceding the finding of this indictment.' This is a proper mode of averment, and would authorize a conviction upon proof that the crime charged had been committed during the period of time thus defined. R. L. c. 218, § 32. But the indictment was found on the first Monday of August, that is, on August 6, of the year 1910. The acts charged did not constitute an offense at common law, but were made criminal by St. 1910, c. 424, § 5 which was approved on April 22, and so did not go into effect until May 22, 1910. R. L. c. 8, § 1. The defendant is charged with having committed the alleged acts during the time between May 6 and August 6, 1910, but his acts were not criminal until May 22 of that year. He contends that this allegation of time is a material averment, descriptive of the offense and fixing its identity, and therefore that the indictment is fatally defective in a substantive averment as to an essential ingredient of the offense charged. Com v. Pray, 13 Pick. 359; Com. v. Elwell, 1 Gray, 463; Com v. Adams, 4 Gray, 27. And see State v. O'Donnell, 81 Me. 271, 17 A. 66; Collins v. State, 58 Ind. 5; Collins v. State, 5 Tex. App. 37; Brewer v. State, 5 Tex. App. 248.

He relies also upon the well-settled principle that an acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to 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, 13 Pick. 359, 362; Wells v. Com., 12 Gray. 326; King v. Dixon, 10 Mod. 335. So far as an offense is charged, it is accordingly one continuous offense, constituted both by a series of acts and by a duration of time; and when the time and the acts are properly proved, the offense is single and indivisible. Com. v. Robinson, ubi supra. Perhaps it may be that before the passage of St. 1899, c. 409, now contained in R. L. c. 218, the question here presented would have admitted only of an answer favorable to the defendant's contention.

But the defect claimed to exist in the indictment is not that it does not fully set forth a criminal offense, but that it charges too much. The defendant is none the less charged with guilt during the period after May 22, that he is charged also with having done the acts stated before that day, when they did not constitute a crime. And it is provided by the statute to which we have referred that 'no indictment shall be quashed or considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars as provided in section 39.' R. L. c. 218, § 34. It has not been claimed in argument that this indictment does not fully meet these requirements. It tells the defendant exactly what charges are made against him. It is not suggested that he needed any bill of particulars to enable him to prepare his defense.

In many of the cases on which the defendant relies the charge was of the commission of an offense on a day named and 'on divers other days and times' within an interval stated, where the prosecution could not be maintained for anything done on the first day specified, and no other day was particularly charged, as was held to be necessary. See for example State v. O'Donnell, 81 Me. 271, 17 A. 66; Collins v. State, 58 Ind. 5; State v. Rollet, 6 Iowa, 535. But under our statute no averment of time is needed, unless that is an essential element of the crime charged (R. L. c. 218, § 20); and in any event the question is whether the indictment complies with the requirements of section 34 above quoted.

The precise claim made by the defendant has been overruled in some other jurisdictions. Nichols & James' Case, 48 Va 589; State v. Way, 5 Neb. 283; Territory v. Ashby, 2 Mont. 89. In each of these cases the indictment was for an offense which by its nature might be continuous. In each case, the charge was that the offense had been committed during a time which began before the passage of the statute that created the offense charged and included a period subsequent to that passage; and in each case it was held that the indictment was good and would support a conviction upon proof that the acts charged had been done within the time averred and since they had been made criminal by the taking effect of the statute. We might not be willing to adopt all the reasoning of some of these cases; but the result reached in them seems to us to have been good. The same doctrine in principle, as to the possibility of subdividing an alleged interval of time, has been held in some well-considered cases in Maine, in which an integral part of the time charged could not be proved, either because of the operation of a statute of limitations or by reason of a change in the statute which fixed the penalty for the offense charged. State v. Pillsbury, 47 Me. 449; State v. Cofren, 48 Me. 364; State v. Dorr, 82 Me. 212, 19 A. 171. In one of these cases there was indeed a doubt expressed whether a conviction could have been sustained for the time following the change in the statute; but in the case at bar we do not...

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