Com. v. Rice

• Decision Date: 24 February 1914
• Parties: COMMONWEALTH v. RICE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 480

104 N.E. 347

COMMONWEALTH v. RICE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1914

SYLLABUS

Defendant's plea of former jeopardy is as follows:

'1. Now comes this defendant Daniel Rice, otherwise called Daniel Dolan, as described in the indictment in the above case, and says that on Saturday, the eighth day of November, 1913, this defendant was arrested in Boston by a police officer named John Kilroy for having committed the crime of larceny from the person; that this defendant was thereafter, to wit, on Monday, the tenth day of November 1913, brought before the municipal court of the city of Boston at which time a complaint was duly and properly issued by the said municipal court against this defendant for having committed the crime of larceny from the person. A certified copy of the said complaint issued by the said court against this defendant as above set forth is hereto annexed and marked 'Exhibit A,' and thereby made a part of this the defendant's plea in bar of the said indictment.

'2. And this defendant says that on Monday, the tenth day of November, 1913, at which time this defendant was before the said court as above set forth, that the said complaint was then and there continued on said tenth day of November for trial to be thereafter had on Thursday, the thirteenth day of November, 1913.

'3. And the defendant says that on said Thursday, the thirteenth day of November, 1913, this defendant was arraigned at the bar of the said municipal court of the city of Boston on the said complaint; that the presiding judge of said court on said thirteenth day of November 1913, was the Honorable William Sullivan; that the person officiating as the acting clerk of said court on said thirteenth day of November was Edward J. Lord, an assistant clerk of said court; that the defendant was called to the bar of the said court by the said Lord and was then and there asked by said Lord if he the defendant was then ready for a trial upon the said complaint, a copy of which is set forth and identified as said Exhibit A, hereto annexed; and the defendant through his counsel stated that he was ready for trial on said complaint; that thereupon the defendant was asked to plead to said complaint by the said Lord and the defendant did then and there plead not guilty; that thereupon issue having been joined between the commonwealth and the defendant as above set forth that the government witnesses were duly sworn under oath and thereafter testified in support of the government case; that after the government witnesses testified as above set forth that the government then rested its case, and the defendant was put to his defense; that after the evidence was completed as above set forth and after argument of counsel on said evidence that the aforesaid presiding justice of the said court did then and there announce in open court, and did then and there in said court find, the defendant guilty of the offense charged in said complaint; that thereupon the said presiding justice of said court did ask the complainant named in said complaint, to wit, the aforesaid police officer named John Kilroy, whether or not this defendant had any previous criminal record; that thereupon the said Kilroy did answer the question of said presiding justice by stating to the said presiding justice of said court that the defendant did have a previous criminal record: that thereupon the said presiding justice did ask the said Kilroy to read the said record; that thereupon the defendant's counsel did object to said Kilroy reading said record until there had been some evidence introduced identifying the defendant to be the person certified in said record; that in answer to said objection of the defendant's counsel the said presiding justice did say in open court to the defendant's counsel, 'Mr. Kelley, I have already found your client guilty, and this is merely upon the question of the sentence;' that thereupon the defendant's counsel did state to the presiding justice of the said court that his objection to the record being introduced on the question of sentence was a valid objection and that the said record could not be introduced on the question of sentence until the person named in said record was identified by some evidence tending to show that the record was the record of the defendant at the bar; that thereupon the said presiding justice did then and there say in open court in answer to the defendant's objection as above set forth, 'Very well, I withdraw the finding of guilty and decline jurisdiction;' thereupon the acting clerk of said court, to wit, the said Lord, in compliance with the order of the said court thereto authorizing said Lord to so do, did then and there order this defendant to recognize in the sum of $2,000 for his appearance before the superior court for the transaction of criminal business on the first Monday in December, next, thereafter; that thereupon this defendant not being able to recognize as ordered by the said court as above set forth was brought to the Charles street jail for the county of Suffolk and confined therein up to Saturday, December 6, 1913, on which latter date this defendant was brought before the said superior court for the county of Suffolk and was arraigned at the bar of said court to plead to the indictment now pending in this honorable court, and to which indictment the defendant is here pleading, by this his plea in bar to said indictment.

'4. And to the charges and allegations set forth in said indictment the defendant now pleads in bar thereof the aforesaid prosecution and trial in the said municipal court of the city of Boston heretofore recited in this the defendant's plea in bar; and the defendant says that the aforesaid prosecution and trial had in said municipal court of the city of Boston does now entitle the defendant to plead the same in bar of the said indictment now pending in this honorable court, and that the defendant ought not to be compelled to further answer the said indictment, and as ground thereof the defendant assigns the following causes, to wit:

'(a) That the defendant named in said complaint marked 'Exhibit A,' to wit, Daniel Rice, otherwise called Daniel Dolan, and who was tried and prosecuted in said municipal court as above set forth is the same identical person named and described as the person in the said indictment, and is now here pleading to this indictment by this his plea in bar to said indictment:

'(b) That the James McEvoy who is alleged in said complaint, a copy of which is annexed and marked 'Exhibit A,' as being the owner and person in possession of the $20 alleged in said complaint to have been stolen as therein charged, is the same identical person as the James McEvoy who is alleged in the said pending indictment against this defendant to be the owner of the said $20 which by said indictment it is charged this defendant did steal from the person of said McEvoy.

'(c) That the unlawful act which is charged in said complaint hereto annexed and marked 'Exhibit A,' to wit, 'that Daniel Rice otherwise called Daniel Dolan on the eighth day of November in the year of our Lord 1913, at the city of Boston and within the judicial district of the municipal court of the city of Boston from the person of James McEvoy did steal, take and carry away certain lawful moneys of the amount and value in all of $20 of the goods, moneys and chattels of said McEvoy on his person and in his possession then and there being,' is the same identical and unlawful act which is now charged in the

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