Com. v. Quirk

• Decision Date: 06 January 1892
• Citation: 155 Mass. 296,29 N.E. 514
• Parties: COMMONWEALTH v. QUIRK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 296

29 N.E. 514

COMMONWEALTH v. QUIRK.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1892

COUNSEL

A.E. Pillsbury, Atty. Gen., and C.N Harris, Asst. Atty. Gen., for the commonwealth.

J.F Cronan, for defendant.

OPINION

LATHROP J.

The defendant, having been convicted by a trial justice of the offense of keeping and maintaining a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors, appealed to the superior court, and gave a recognizance to prosecute his appeal. The appeal was entered and, under Pub.St. c. 155, § 60, ^[1] a copy of "the conviction and other proceedings in the case" was made by the trial justice, and transmitted to the superior court. The copy was defective, in that the jurat of the complaint omitted the name of the trial justice. The defendant did not appear, and was defaulted. At the next term the defendant was arrested on a capias and brought before the court, and thereupon recognized for his appearance. At the same term the defendant made a motion to take off the default, which motion was overruled. He then filed a motion in arrest of judgment on the ground that the superior court had no jurisdiction of the case on account of the omission in the record above stated. On the same day the district attorney suggested an error in said copy, and moved to file an amended record. This motion was granted, the record was filed, and the motion in arrest of judgment was overruled. The amended record corrected the omission above set forth. The defendant thereupon filed another motion in arrest of judgment, on the ground that no copy was filed at the term to which the case was appealed, which showed that the court had jurisdiction, because it did not appear therein that the complainant was examined on oath, and that, if the court ever had jurisdiction of the case, it ceased to have jurisdiction thereof at the end of the term to which it was appealed. This motion was overruled. The case was called for trial, the default was struck off, against the defendant's objections, the defendant refused to plead, and a plea of not guilty was directed by the court to be entered. The defendant was then tried, and found guilty; and the case comes before us on his exceptions.

The first objection made to the jurisdiction of the superior court was by a motion in arrest of judgment, after the defendant, who had been brought before the court by a...