Commonwealth v. Andler

• Decision Date: 29 February 1924
• Citation: Commonwealth v. Andler, 247 Mass. 580, 142 N.E. 921 (Mass. 1924)
• Parties: COMMONWEALTH v. ANDLER.
• Court: Supreme Judicial Court of Massachusetts

247 Mass. 580

142 N.E. 921

COMMONWEALTH

v.ANDLER.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 29, 1924.

Exceptions from Superior Court, Middlesex County; James H. Sisk, Judge.

Israel Andler was found guilty of having registered bottles in his possession without the consent of the owner, and brings exceptions. Exceptions sustained.

Arthur K. Reading, Dist. Atty., of Boston, and Gardner W. Pearson, Asst. Dist. Atty., of Lowell, for the Commonwealth.

Benj. Rabalsky and Sam'l A. Margolis, both of Boston, for defendant.

RUGG, C. J.

This complaint, made by one Comiskey, ‘agent for H. P. Hood & Sons, Inc., a corporation,’ changes that the defendant at a specified time and place ‘did have in his possession registered vessels, to wit, fifty-nine registered bottles marked H. P. Hood & Sons, Registered, without the written consent of the owner, the said H. P. Hood & Sons, Inc., against the peace of the said Commonwealth, and contrary to the form of the Statute in such case made and provided.’ There was a verdict of guilty. Sentence of fine was imposed but its execution stayed.

This complaint sets out no crime known to the law of this Commonwealth. It is a complaint in proper form under G. L. c. 110, § 20, on which a search warrant may issue and on which a person in possession of such vessels as are there described may be summoned into court and examined as to the circumstances of such possession, and on which possession of such property taken on the search warrant may be awarded to the owner. That section does not authorize the imposition of any sentence on the person in whose possession the vessels are found. The only crime created with explicit reference to registered bottles is in G. L. c. 110, § 18. It there is provided that--

‘No person, without the written consent of the owner thereof, shall fill with a beverage with intent to sell the same any vessel registered under the preceding section, or change in any way, or conceal any name or the word ‘registered’ thereon, or buy, sell, traffic in or dispose of any such vessel.'

The complaint in the case at bar manifestly is not framed on section 18 and does not charge the essential facts made a crime thereby. Plainly it is not based on G. L. c. 110, §§ 1, 22, 23, 24.

Objection to the complaint on the ground that it set out no crime known to the law might have been taken by motion to quash. But this defect affected the jurisdiction of the court and properly might be raised at a later time. G. L. c. 278, §§ 17 and 34; Commonwealth v. Connor, 155 Mass. 134, 29 N. E. 204.

The point that the complaint sets forth no crime known to the law has not been raised or argued at the bar. Nevertheless it ought to be noticed. No court has jurisdiction to...