Com. v. Rosenthal

• Decision Date: 27 February 1912
• Citation: 97 N.E. 609,211 Mass. 50
• Parties: COMMONWEALTH v. ROSENTHAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 50

97 N.E. 609

COMMONWEALTH v. ROSENTHAL.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1912

COUNSEL

J. J. Higgins, Dist. Atty., for the Commonwealth.

E Greenhood, for defendant.

OPINION

RUGG C.J.

It is well settled that a defendant may be charged with divers and distinct offenses, whether felonies or misdemeanors, of a kindred nature, and liable to punishments of the same general character, by several counts in the same indictment or complaint. Com. v. Mullen, 150 Mass. 394, 23 N.E 51; Castro v. The Queen, 6 App. Cas. 229. It has been decided also that two persons separately indicted for the same offense may be tried together. Com. v Seeley, 167 Mass. 163, 45 N.E. 91. It was held in Com. v. Bickum, 153 Mass. 386, 26 N.E. 1003, that a defendant against his objection could not be tried at one time upon two separate complaints charging two distinct crimes committed at different times. To this same effect see McClellan v. State, 32 Ark. 609. None of these decisions quite reach the point presented by the case at bar. Broadly stated, that point is whether two indictments founded upon substantially one transaction provable largely by the same evidence can be tried together against one defendant. Concretely, it is whether a defendant against his protest may be tried at one time upon two separate indictments, one charging abduction of a girl between seventeen and nineteen years of age, for the purpose of unlawful sexual intercourse (R. L. c. 212, § 2, as amended by St. 1910, c. 424, § 1) and the other charging adultery with the same girl.

Each of the offenses named is a felony, being punishable by imprisonment in the state prison. R. L. c. 215, § 1. The general nature of the two offenses is the same, namely, unlawful sexual relations. The enticing away of the girl from home or elsewhere by a married man in but a preliminary step in the accomplishment of the ultimate design. The evidence which would support the two charges would be similar in character. The mode of trial is the same. The circumstances that the statute of limitations is less as to abduction and a greater burden of evidence is required for conviction of it (R. L. c. 212, § 7) do not differentiate the two crimes in that respect. Nor do the facts that an unmarried man might be found guilty of one offense while only a married man could commit the other upon the allegation of the indictment, or that an element of fraud might enter into one and not into the other crime constitute vital differences. The two offenses might have been joined by several counts on one indictment. In the case at bar the offense, whatever it might be found to be, grew out of the same acts. The same evidence would be required in substance to prove each crime, although less would suffice to convict of one than the other. Where the essential elements of the conduct, which may constitute two distinct crimes, are the same and to be proved in large part by the same evidence, and where the indictment might have been drawn legally so as to include both crimes, no right of the defendant secured to him by the law as matter of right is violated by compelling a joint trial of both indictments in the exercise of a sound judicial discretion.

The rule of Com. v. Bickum, 153 Mass. 386, 26 N.E. 1003, does not prevail generally. State v. Johnson, 50 N.C. 221, State v. Watts, 82 N.C. 656, and Withers v. Com., 5 Serg. & R. (Pa.) 59, are referred to in that opinion. See, also, State v. Lee, 114 N.C. 844, 19 S.E. 375. The contrary practice is established by statute in some jurisdictions. Williams v. U. S., 168 U.S. 382-390, 18 S.Ct. 92, 42 L.Ed. 509; Short v. People, 27 Colo. 175, 60 P. 350. In Logan v. U. S., 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, decided after Com. v. Bickum, it was said by Mr. Justice Gray at page 296 of 144 U.S., page 627 of 12 S.Ct. (36 L.Ed. 429), that different indictments 'might perhaps have been ordered, in the discretion of the court, to be tried together independently of any statute upon the subject. See Ex parte Yarbrough, 110 U.S. 651, 655 [4 S.Ct. 152, 28 L.Ed. 274]; U.S. v. Marchant, 12 Wheat. 480 .' In Brown v. U. S., 143 F. 60, 66, 67, 74 C. C. A. 214, 220, 221, it was said by Judge Van Devanter that the indictments 'were tried together as separate indictments to avoid unnecessary delay and expense in the interests of both the government and the defendants. * * * The court was invested with a discretion to direct that the indictments be thus tried together independently of any statute upon the subject.' In Cummins v. People, 4 Colo. App. 71, 74, 34 P. 734, 735, it was said that the statute was 'but an embodiment of a well established principle of the common law.' See, also, People v. Jacobson, 247 Ill. 394, 397, 93 N.E. 417.

The logic of Com. v. Bickum, 153 Mass. 386, 26 N.E. 1003 did not obtain in Com. v. Miller, 150 Mass. 69, 22 N.E. 434, where two, jointly complained of in the district court in two counts with having received different stolen goods at different times, one being found guilty on both counts and the other acquitted on the first and found guilty on the second count, on the appeal of both separate trials were refused in the...