Com. v. Wheeler

• Citation: 162 Mass. 429,38 N.E. 1115
• Parties: COMMONWEALTH v. WHEELER.
• Decision Date: 30 November 1894
• Court: United States State Supreme Judicial Court of Massachusetts

162 Mass. 429

38 N.E. 1115

COMMONWEALTH v. WHEELER.

Supreme Judicial Court of Massachusetts, Worcester.

November 30, 1894

COUNSEL

Francis A. Gaskill, Dist. Atty., for the Commonwealth.

H.L Parker, for defendant.

OPINION

LATHROP J.

"Every material fact" in an indictment "must be stated with time and place, in order that the grand jury may appear to have jurisdiction to find the bill, and also that the petty jury may be drawn from the proper county to try the case." Per Lord Denman, C.J., in Reg. v O'Connor, 5 Q.B. 16, 30. The defendant in the case at bar could not legally be convicted in the county of Worcester of the offense of which he was charged, unless the indictment set forth that it was committed in that county. The indictment begins with the words: "Commonwealth of Massachusetts, Worcester--ss." The defendant is described as of Buckland, in the county of Franklin, and the offense is alleged to have been committed "at Westminster, in said county." According to the authorities, such an indictment is bad, either because, two counties having been before named, it is uncertain to which the words "in said county" refer, or because these words refer to the last antecedent, namely, the county of Franklin. 2 Hale, P.C. 180; 2 Hawk.P.C., c. 25, § 34; 2 Gabb.Cr.Law, 210; 1 Chit.Cr.Law, 194; Elnor's Case, 1 Cro.Eliz. 184; 1 Wm.Saund. 308, note; Reg. v. Rhodes, 2 Ld.Raym. 886; King v. Moor Critchell, 2 East, 66; State v. McCracken, 20 Mo. 411; Cain v State, 18 Tex. 391; Bell v. Com., 8 Grat. 201. It is contended, however, that a different rule applies in this commonwealth, on the authority of Chief Justice Parsons in Com. v. Springfield, 7 Mass. 9, 12, where he says: "In England the limits of the several counties and parishes are not ascertained by public acts of parliament, the records of which are remaining; but they are determined by ancient usage, of which the judges cannot judicially take notice. The case is different in Massachusetts. Our county limits, and also the boundaries of our several towns, are prescribed by public statutes, of which we are bound judicially to take notice. When from these limits or boundaries, it appears that every part of any town is in the same county, of that fact we can judicially take notice." The indictment in that case was for not repairing a highway, described as running from a certain point in the town of Springfield to the town of South Hadley. Both towns were described as being within the county of Hampshire. The defective part of the road was described as being within the town of Springfield. The objection taken was that the location of the defective part of the road in Springfield was insufficient, because the court could not judicially presume that the whole of that town was within the county. It was of this fact that the court said that it could take judicial notice. In Com. v. Cummings, 6 Gray, 487, a complaint described the defendant as "of New Braintree, in the county of Worcester," and charged the offense to have been committed "at New Braintree." This was held to charge the offense to have been committed at the same New Braintree which was before mentioned. But it was said by Mr. Justice Metcalf, in delivering the opinion of the court: "If New Braintree had not been previously designated as within the county of Worcester, the complaint would have been insufficient to sustain a judgment." In Com. v. Barnard, 6 Gray, 488, a complaint to a justice of the peace within and for the county of Worcester charged the defendant, who was described as of Greenwich, in the county of Hampshire, with selling intoxicating liquor "at West Brookfield." After conviction the defendant filed a motion in arrest of judgment, and was discharged. The opinion of the court, delivered by Mr. Justice Metcalf, was as follows: "It does not appear in this complaint that West Brookfield, the place where the defendant is charged with having sold intoxicating liquor, is either a town or a place within the ...