Commonwealth v. Berley

Citation254 Mass. 556,150 N.E. 869
PartiesCOMMONWEALTH v. CAPLAND. SAME v. BERLEY.
Decision Date24 February 1926
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Arthur P. Stone, Special Judge.

Jennie Capland and Issac Berley were convicted of violation of the liquor law, and they except. Exceptions overruled.

R. T. Bushnell, Asst. Dist. Atty., of Boston, for the commonwealth.

W. R. Scharton, of Boston, for defendants.

CARROLL, J.

The defendants were separately indicted. Jennie Capland was charged on four counts with violations of the liquor laws; Isaac Berley was indicted on three counts-the first, for an alleged sale; the second, for keeping liquor with intent to sell the same unlawfully; and the third, with maintaining a common nuisance. The indictment on which Berley was tried was numbered 13,506. The defendants were tried together. Berley was found not guilty on the first and third counts, by order of the court, and the jury returned a verdict of guilty on the second count.

[1] The indictment 13,506 stood in the name of Fred Doe, ‘whose other and true name and a more particular description of whom is to said jurors unknown.’ On May 11, 1925, some one appeared in court and pleaded to said indictment, and a plea of not guilty was entered. Berley was not arrested or arraigned until June 15, 1925. When arraigned he was allowed to go on his own recognizance and ‘no formal plea was then entered in behalf of the defendant.’ On June 15 the commonwealth moved that, ‘the name of the defendantin the above entitled case indicted under the name of Fred Doe now having been discovered to be truly Isaac Berley, the name Isaac Berley be entered on the record and used in all subsequent proceedings.’ This motion was allowed June 29, on which day Berley was arraigned for trial. He objected to being placed on trial on this indictment. His objection was overruled, and the defendant excepted. He refused to plead, and the trial judge ordered the clerk to enter a plea of not guilty.

The entry of the plea of not guilty when the defendant had refused to plead was not prejudicial to the defendant and was properly ordered by the court. If a defendant upon arraignment refuses to plead, the court may order a plea of not guilty to be entered and the trial is to proceed as if the defendant had pleaded not guilty. G. L. c. 277, § 71; Commonwealth v. McKenna, 125 Mass. 397;Commonwealth v. Quirk, 29 N. E. 514, 155 Mass. 296.

[2] Berley also contends that the indictment was invalid because it contains no description of the defendant by name ‘or other description’; that when one person has pleaded to an indictment against Fred Doe, whose true name was not known to the jurors, ‘that the indictment becomes dead as to any further service.’ It does not appear that the defendant excepted to the form of the indictment. Under the statute (G. L. c. 277, § 19), if the name of the accused is unknown to the grand jury, he may be described by a ficitious name, or by any other practicable description, with an allegation that his real name is unknown. The indictment against the defendant followed the provision of the statute, and was legal.

[3] By reason of this statute, Commonwealth v. Crotty, 10 Allen, 403, 87 Am. Dec. 669, upon which the defendant relies, is not relevant. Even at common law a misnomer of the defendant could be taken advantage of only by a plea in abatement. ‘Had he chosen to plead in abatement, the grand jury might then have amended their bill of indictment, and found and returned it anew.’ Turns v. Commonwealth, 6 Metc. 224, 236. But now, under G. L. c. 277, § 19, an indictment of the defendant by a fictitious or erroneous name is not a ground for abatement, the statute providing that when the true name of the defendant is discovered, it shall be entered on the record and may be used in subsequent proceedings, ‘with a reference to the fact that he was indicted by the name or description mentioned in the indictment.’

[4] The motion of the district attorney was in accordance with the statute. The defendant was placed on trial on indictment No....

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21 cases
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 7, 1936
    ...murdered, except by a fictitious name (see Commonwealth v. Crotty, 10 Allen, 403, 87 Am.Dec. 669; [1 N.E.2d 193]Commonwealth v. Berley, 254 Mass. 556, 558, 150 N.E. 869), in theory of law it required the defendant to answer for the murder of a particular man and no other. Commonwealth v. Bl......
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 7, 1936
    ... ... Berley, 254 Mass. 556, ... 558, 150 N.E. 869), in theory of law it required the ... defendant to answer for the murder of a particular man and no ... other. Commonwealth v. Blood, 4 Gray, 31; ... Commonwealth v. Burke, 14 Gray, 81; Commonwealth ... v. Carroll, 15 Gray, 412; Commonwealth v ... ...
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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 28, 1940
    ...Railway Co., 157 Mass. 579, 32 N.E. 955;Manning v. Boston Elevated Railway Co., 187 Mass. 496, 73 N.E. 645;Commonwealth v. Capland, 254 Mass. 556, 150 N.E. 869;Commonwealth v. Friedman, 256 Mass. 214, 152 N.E. 60;Claffey v. Fenelon, 263 Mass. 427, 161 N.E. 616. If the judge had found that t......
  • Commonwealth v. Sacco
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 12, 1926
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