Commonwealth v. Azer

• Decision Date: 28 January 1941
• Parties: COMMONWEALTH v. AZER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 153

31 N.E.2d 549

COMMONWEALTH

v.AZER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1941.

Exceptions from Superior Court, Suffolk County; E. E. Hobson, Judge.

Samuel Azer was convicted of unlawfully selling alcoholic beverages, and he brings the case before the Supreme Judicial Court on exceptions.

Exception overrueld.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

W. J. Foley, Dist. Atty., and R. S. Bernard, Asst. Dist. Atty., both of Boston, for plaintiff.

J. J. Moss, of Boston, for defendant.

LUMMUS, Justice.

This is a complaint dated February 13, 1940, brought in the District Court of Chelsea and taken by appeal to the Superior Court. It charges the defendant with unlawfully selling certain alcoholic beverages to one Wilfred Williams. The defendant filed a plea of autrefois acquit, setting up an alleged former jeopardy in that he had previously been acquitted by a jury of the same offence. 2 Bishop, New Crim.Proc., 2d Ed.1913, §§ 805-831. G.L.(Ter.Ed.) c. 277, § 75. Commonwealth v. DiStasio, 297 Mass. 347, 354-356, 8 N.E.2d 923, 113 A.L.R. 1133. The jury were permitted to find that there was no such prior acquittal or former jeopardy. After a verdict of guilty, the defendant brings the case here on exceptions.

The facts as to former jeopardy are not disputed. On December 31, 1939, police officers entered the defendant's drug store and seized liquor from a man who then and there gave his name as Harry Jones. They contended that he had just bought it from the defendant. A complaint was brought in the District Court of Chelsea, charging the defendant with unlawfully selling certain alcoholic beverages to one Harry Jones. On appeal to the Superior Court, it appeared that the true name of the alleged purchaser was Wilfred Willaims, and there was no evidence that he was known as Harry Jones. For this reason a verdict of not guilty was directed on February 9, 1940.

The present complaint is based on the same alleged sale. The acquittal upon the earlier complaint was the result of a variance, a failure to prove that the purchaser was ‘one Harry Jones' as alleged. The Commonwealth failed to prove a sale to Harry Jones merely by proving a sale to Wilfred Williams. True, if the Commonwealth had proved that Wilfred Williams was known as Harry Jones, the latter name would have been a second name for Wilfred Williams, and a sale to Williams could properly be described in the complaint as a sale to Jones. Commonwealth v. Shearman, 11 Cush. 546;Commonwealth v. Trainor, 123 Mass. 414;Commonwealth v. O'Hearn, 132 Mass. 553;Commonwealth v. Gould, 158 Mass. 499, 507, 33 N.E. 656. See, also, Young v. Jewell, 201 Mass. 385, 386, 87 N.E. 604, correcting a verbal inaccuracy in earlier cases, and Bridges v. Hart, 302 Mass. 239, 18 N.E.2d 1020. But in the absence of such proof, evidence of a sale to Williams would not warrant conviction for an alleged sale to Jones, unless the misnomer was ‘immaterial.’ G.L.(Ter.Ed.) c. 277, § 35. Comonwealth v. Snow, 269 Mass. 598, 600, 601, 169 N.E. 542, 68 A.L.R. 920. The statute cited did not cure the variance, for without proof that the man was known by both names, the offence proved was wholly different from that charged, and the variance was not ‘immaterial.’ Commonwealth v. Mehan, 11 Gray 321, 322;Commonwealth v. Buckley, 145 Mass. 181, 13 N.E. 368.

Whether there was double jeopardy depends upon our common law and statutes. Our Constitution contains nothing about it, and the Fifth Amendment to the Constitution of the United States has no application to proceedings in State courts. Spies v. Illinois, 123 U.S. 131, 166, 8 S.Ct. 22, 31 L.Ed. 80;Phillips v. McCauley, 9 Cir., 92 F.2d 790;Commonwealth v. DiStasio, 297 Mass. 347, 353, 8 N.E.2d 923, 113 A.L.R. 1133. Compare Grosjean v. American Press Co., 297 U.S. 233, 242 et seq., 56 S.Ct. 444, 80 L.Ed. 660.

The material provisions of our statutes follows. ‘A person shall not be held to answer on a second indictment or complaint for a crime of which he has been acquitted upon the facts and merits * * *.’ G.L.(Ter.Ed.) c. 263, § 7. ‘If a person has been acquitted by reason of a variance between the indictment or complaint and the proof * * * he may be again arraigned, tried and convicted for the same crime on a new indictment or complaint, notwithstanding such former acquittal.’ Section 8. Commonwealth v. Cabot, 241 Mass. 131, 152-154, 135 N.E. 465;Commonwealth v. Campopiano, 254 Mass. 560, 562, 150 N.E. 844.

The test, approved in many cases, by which to determine whether the two indictments or complaints are for the same offense, so as to create a double jeopardy, is this: If on the earlier indictment or complaint the defendant might have been convicted by proof of the facts charged in the later one, an acquittal upon the earlier one will bar the later one; otherwise it will not. Commonwealth v. Roby, 12 Pick. 496; Morey v. Commonwealth, 108 Mass. 433; Commonwealth v. Jones, 288 Mass. 150, 152, 192 N.E. 522;Commonwealth v. DiStasio, 297 Mass. 347, 356, 8 N.E.2d 923, 113 A.L.R. 1133;Burton v. United States, 202 U.S. 344, 378-381, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362;...