Commonwealth v. Bickum
| Decision Date | 28 February 1891 |
| Citation | 26 N.E. 1003,153 Mass. 386 |
| Parties | COMMONWEALTH v. BICKUM, (two cases.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Essex county.
Evidence that a witness was refused liquor on a day after the one named in the complaint is inadmissible.
A.E Pillsbury, Atty. Gen., for the Commonwealth.
Brickett & Poor, for defendant.
The first complaint was received and sworn to on May 23, 1890 and charged the defendant with maintaining at Haverhill a certain tenement, used for the illegal sale and illegal keeping of intoxicating liquors "on the first day of February, in the year of our Lord eighteen hundred and ninety, and on divers other days and times between that day and the day of making the complaint." The second complaint was received and sworn to on August 4, 1890, and charged the defendant with unlawfully selling at Haverhill intoxicating liquors "on the thirty-first day of July in the year of our Lord eighteen hundred and ninety." The first exception was waived. See Com. v O'Brien, 25 N.E. 834, (Essex, November, 1890.) The next exception is that the two complaints were tried together in the superior court, against the objection of the defendant. The two offenses might have been joined in one complaint or indictment. Com. v. Mullen, 150 Mass. 394, 23 N.E. 51; Com. v. Ismahl, 134 Mass. 201; Com. v. McCluskey, 123 Mass. 401. If, however, the first complaint in this case had contained a count charging the offense described in the second, then no conviction could have been had on that count, but both offenses might have been described in separate counts in the second complaint. Com. v. Le Clair, 147 Mass. 539, 18 N.E. 428; Com. v. Doyle, 110 Mass. 103. The attorney general has cited no precedent in this commonwealth for the practice adopted in this case. He cites 1 Bish.Crim.Proc. § 1042 et seq. The only case there cited which seems to us to require notice is Withers v. Com, 5 Serg & R. 59. In that case two indictments against the defendant--each for conspiracy and cheating--had been tried together without his consent. The authorities cited in the argument in that case relate to the joinder of counts in an indictment. It was held that there was no error, as it was a matter of discretion in the court where the trial was had. In the opinion, GIBSON, J., says: "I have found no case exactly like the present, but there is a strong analogy between it and those in which several counts for separate and distinct...
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