Com. v. Sullivan

• Decision Date: 04 January 1896
• Citation: 42 N.E. 566,165 Mass. 183
• Parties: COMMONWEALTH v. SULLIVAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 183

42 N.E. 566

COMMONWEALTH v. SULLIVAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 4, 1896

COUNSEL

Francis P. Curran, for Sullivan and Nagle.

Samuel K. Hamilton, for Foley.

Hosea M. Knowlton, Atty. Gen., and J.M. Hallowell, Asst. Atty Gen., for the Commonwealth.

OPINION

HOLMES J.

The defendants have been found guilty of murder in the second degree. The killing took place in resisting an attempt to arrest them on a charge of robbery made by the deceased. The attempt to arrest was made by one Livingston, and as it did not appear at the trial that he had a warrant, or that a felony had been committed in fact, it became material to show that he was a constable or police officer. Rohan v Sarvin, 5 Gray, 281, 285; Com. v. Carey, 12 Cush. 246, 251; Morley v. Chase, 143 Mass. 396, 398 9 N.E. 767. The only questions before us concern the competency and sufficiency of the evidence on this point.

The evidence offered was the record of the town meeting at which Livingston was elected constable, and the testimony of a selectman, the clerk of the board, who produced their records, showing the appointment of Livingston as a special police officer, coupled with Livingston's testimony on the same point. Several objections are taken.

First, it is said that the town meeting was not warned in due form. The by-laws of the town of Billerica require notice of the town meeting to be posted, among other places, "at the town hall." See St.1893, c. 417, § 260. The town hall had been burned down before the time in question, and therefore the copy of the warrant was ordered to be posted at another hall, where that town meeting was to be held. The return showed a service of the warrant "as within directed." We are of opinion that this is a sufficient compliance with the by-law, so far as the validity of the meeting was concerned. Next, it is objected that it does not appear that the moderator was elected by ballot, or that a voting list was used at his election. St.1893, c. 417, §§ 273, 275. The language of the record is: "Article 1. Frederick S. Clark was chosen moderator." The vote on the second article begins: "Voted, the town officers who are required by law to be chosen by ballot shall be chosen on one ballot," etc. This shows that the meeting had the law in mind, and we are disposed to think that the record is "sufficient prima facie proof of a choice in a legal manner." Tobey v. Wareham, 2 Allen, 594, 595; Attorney General v. Crocker, 138 Mass. 214-216. But, further, the town has taken no action to undo its former votes as it did in Attorney General v. Simonds, 111 Mass. 256; and where the validity of the election of the officer is brought in question in this collateral way, an election at a valid meeting presided over by a de facto moderator is enough. Attorney General v. Crocker, 138 Mass. 214, 216, et seq.; Sudbury v. Heard, 103 Mass. 543; Elliott v. Willis, 1 Allen, 461.

It is said that the record does not show that Livingston was duly sworn as a constable, as required by St.1893, c. 417, §§ 278, 286. The eleventh article of the warrant was to choose one or more constables for one year, and the record of the meeting reads: "Article 11. Warren Holden had 53 votes; J.A. Smith had 77; E.W. Livingston had 291; M. Conway, Jr., had 259." A bracket connected the lines on which were the last two names, and then followed the words: "Declared elected and sworn." This sufficiently indicated that Livingston, at least, was sworn. Tobey v. Wareham, 2 Allen, 594, 595. See, generally, Briggs v. Murdock, 13 Pick, 305.

In the record the words: "A true copy. Attest: Everett W Livingston, Constable,"--follow the warrant to warn the meeting, and precede the return. It is objected that this is a copy of a copy, instead of a copy of the original. But the record goes on: "At a legal meeting held *** under...