Commonwealth v. Butland

• Decision Date: 03 January 1876
• Citation: 119 Mass. 317
• Parties: Commonwealth v. John Butland
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 317

Commonwealth v. John Butland

Supreme Court of Massachusetts

January 3, 1876

Argued November 22, 1875 [Syllabus Material]

Suffolk. Indictment for perjury in two counts. The first count alleged that on March 25, 1875, at Boston, in the county of Suffolk and Commonwealth of Massachusetts "one Lovell K. Currier was brought before the Municipal Court of the city of Boston, holden at said Boston for the transaction of criminal business, upon a complaint in due form of law, charging him, said Currier, with the crime of perjury, committed at said Boston; that the further consideration of said complaint was continued until the sixth day of April then next ensuing; and that on said sixth day of April, said Currier being lawfully before said Municipal Court upon said complaint, it was lawfully ordered by said Municipal Court that the further consideration of said complaint be continued until the fourteenth day of said April, and that said Currier recognize with sufficient sureties in the sum of twelve hundred dollars for the personal appearance of him, said Currier, before the said Municipal Court, on the said fourteenth day of April, then and there to answer further to said complaint, and to do and receive that which should then be enjoined upon him, said Currier, by said Municipal Court, and not depart without license; and that said Currier should stand committed to the jail, at Boston, in said county, until he should recognize as aforesaid; and that upon said sixth day of April said Currier failed to recognize as aforesaid, and was committed to said jail in pursuance of said order; and that thereafter, to wit, on the ninth day of said April, and while said Currier was committed and held in jail as aforesaid, at Boston aforesaid, before one Edward J. Jones, Esquire, a commissioner within and for said county of Suffolk, legally authorized, and duly appointed and qualified to take bail in criminal cases in said county, John Butland, of said Boston, offered himself as bail and surety in such recognizance for said Currier; that said Butland was then and there lawfully required by said commissioner -- pursuant to the course and practice of taking and approving bail -- to make a written statement under oath of his, said Butland's, circumstances and property, the same being material to aid said commissioner in determining whether he would and should take and approve said Butland as such bail and surety; that said Butland, being then and there duly sworn to the requirement aforesaid, did then and there, in pursuance of said requirement, make said statement, and did then and there, being so sworn as aforesaid, falsely, wilfully, knowingly and corruptly say, depose and swear (in and by said written statement) as follows, that is to say: Commonwealth of Massachusetts. Suffolk, ss. Before Edward J. Jones, Esquire, a commissioner duly authorized to take bail in criminal cases in said county, I (meaning said Butland) offering myself as surety in the matter of said Commonwealth vs. Lovell K. Currier, on oath certify and declare."

The first count then set forth the written statement at length, negatived the declarations thereof, and concluded as follows:

"And so the jurors aforesaid, on their oath aforesaid, do present and say, that said John Butland, on said ninth day of April, before said Edward J. Jones, Esquire, then and there having such power and authority as aforesaid, in manner and form aforesaid, did knowingly and wilfully commit wicked and wilful perjury, against the peace of said Commonwealth, and the form of the statute in such case made and provided."

The second count was for perjury on the examination of the defendant as bail for one John White, who, as the indictment alleged, was lawfully brought before the Municipal Court of the South Boston District, for the transaction of criminal business, upon a complaint charging him with the crime of assault and battery upon a police officer, and was ordered to recognize with sureties for his appearance before the Superior Court, "to answer to said complaint for the crime aforesaid;" and for the failure so to do was committed to jail; and while so committed made application to a commissioner to be admitted to bail. The indictment then alleged that the defendant offered himself as bail, and on his examination before the commissioner, swore to a written statement, which was set forth at length in the indictment, and the allegations thereof negatived, and concluded in the usual manner.

At the trial in the Superior Court, before the jury were empaneled, the defendant filed a motion to quash the indictment, assigning reasons therefor. This motion was overruled. The defendant was then tried and found guilty, and alleged exceptions, the substance of which, together with so much of the material parts of the indictment as are not already stated, and of the motion to quash, appears in the opinion.

Exceptions overruled.

H. R. Cheney, for the defendant.

W. C. Loring, (C. R. Train, Attorney General, with him,) for the Commonwealth.

Morton J. Colt, J., absent.

OPINION

Morton, J.

The motion to quash the indictment was rightly overruled. The statute provides that in every indictment for perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant in the criminal case in which the perjury is alleged to have been committed, and by what court or before whom the oath was taken or made, without setting forth the indictment or any part of any proceedings, and without setting forth the commission or authority of the court or person before whom the offence of perjury was committed. St. 1860, c. 186, § 1.

The principal reason for quashing this indictment, urged by the defendant, though stated in different forms, is in substance, that it does not sufficiently allege that the Municipal Court had jurisdiction of the case of Currier, in which the perjury was alleged to have been committed. It may be doubted whether such an allegation is necessary. Currier, having been committed for not finding sureties to recognize for him, had a right to be released on bail, whether the court had jurisdiction or not, and it might be perjury if the defendant swore falsely on the proceedings to procure his discharge.

But if such an allegation is necessary, we are of opinion that it is sufficiently made in this indictment. The first count alleges that Currier was lawfully before the court upon a complaint charging him with perjury, and that it was lawfully ordered that he recognize with sureties and be committed until he so recognize, which could not be true if the court had no jurisdiction of the case. This is sufficient within the spirit of the statute, the design of which was to avoid the necessity of setting forth in full the complaint or other proceedings of the court or magistrate before whom the case was pending. Commonwealth v. Hatfield, 107 Mass. 227. Commonwealth v. Carel, 105 Mass. 582. Commonwealth v. Hughes, 5 Allen 499.

The objection that the count contains "no allegation by or before whom the oath was administered to the defendant," and no sufficient allegation of time and place, is unfounded. It alleges with certainty, so as not to be open to any other construction, that the defendant, at Boston, on the ninth day of April, 1875, made the written statement and took the oath alleged, before Edward J. Jones, a duly authorized and qualified commissioner.

The objection that the commissioner had no authority to require or take the written statement under oath, is founded upon a misconstruction of the St. of 1862, c. 159. The design of that statute was to provide especial safeguards in the...