Commonwealth v. Capland

Decision Date24 February 1926
Citation254 Mass. 556
PartiesCOMMONWEALTH v. JENNIE CAPLAND. SAME v. ISAAC BERLEY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

January 14, 15 1926.

Present: RUGG, C.

J., BRALEY CARROLL, WAIT, & SANDERSON, JJ.

Practice, Criminal Entry by order of court of plea of "not guilty," Vacation of plea by order of court, New trial. Pleading Criminal, Indictment. Jury and Jurors.

An indictment charging violation of the law as to intoxicating liquors named as the defendant "Fred Doe, whose other and true name and a more particular description of whom is to said jurors unknown." Three days after the return of the indictment, some one appeared and pleaded not guilty to the indictment, and that plea was entered. Over a month later, one Berley, who was not the person who previously had appeared and pleaded, was arrested and arraigned. No formal plea then was entered.

The Commonwealth moved, "the name of the defendant in the above entitled case indicted under the name of Fred Doe now having discovered to be truly Isaac Berley, that the name Isaac Berley be entered on the record and used in all subsequent proceedings." The motion was allowed; the former plea of not guilty was vacated; Berley was arraigned and refused to plead, and a plea of not guilty was entered by order of the trial judge. Held, that

(1) It was assumed that the first plea of not guilty was entered by mistake, and it therefore was proper to order it vacated;

(2) The order that the plea of not guilty be entered for Berley was proper;

(3) The form of the original indictment and the substitution of the name of Berley for that of the defendant named therein were proper under

G.L.c. 277, Section 19.

Upon a motion for a new trial upon an indictment charging a woman with violation of the law as to intoxicating liquors, based on the ground that after the jury had been empanelled the assistant district attorney read to the jurors not empanelled on the case, a letter, reflecting on the place of business and the conduct of a woman who it could have been found was the defendant, and that thereafter, one or more of these jurors "went before the jurors who were empanelled in said case," during intermission, and in their hearing detailed the contents of the letter, the judge found that the jurors empanelled on the case on trial did not discuss the information received during their consultation, and that the judgment of the juror who heard this statement was not influenced by it and dismissed it from his mind; and denied the motion.

Held, that the denial of the motion was within the discretion of the trial judge and that no reason appeared for disputing his ruling.

INDICTMENTS, found and returned on May 8, 1925, charging violation of the law as to intoxicating liquors.

In the Superior Court, the actions were tried together before Stone, J., a judge of a district court sitting in the Superior Court under Sts. 1923, c. 469; 1924, c. 485. The indictments and exceptions saved at the trial are described in the opinion. The defendant Capland was found guilty on all counts of the indictment against her, and the defendant Berley was found guilty on the second count of the indictment against him. The defendants alleged exceptions.

W.R. Scharton, for the defendants. R.T. Bushnell, Assistant District Attorney, for the Commonwealth.

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 for 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 trial judge, and the jury returned a verdict of guilty on the second count.

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, "the name of the defendant in the above entitled case indicted under the name of Fred Doe now having discovered to be truly Isaac Berley, that 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...

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3 cases
  • Claffey v. Fenelon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 24, 1928
    ...256 , 259, 260. Burke v. Hodge, 211 Mass. 156 , 162. Lewis v. Lewis, 220 Mass. 364, 366-369, and cases there reviewed. Commonwealth v. Capland, 254 Mass. 556, 560. Commonwealth v. Friedman, 256 Mass. 214 , Dixon v. A.J. Cunningham Co. 257 Mass. 63 , 70. Somewhat more precisely in point are ......
  • Commonwealth v. Berley
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 24, 1926
    ...254 Mass. 556150 N.E. 869COMMONWEALTHv.CAPLAND.SAMEv.BERLEY.Supreme Judicial Court of Massachusetts, Middlesex.Feb. 24, 1926 ... 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.[254 Mass ... ...
  • Commonwealth v. Friedman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 29, 1926
    ...use his best judgment, and his discretion is not to be disturbed in the absence of evidence to show that it was abused. See Commonwealth v. Capland, 254 Mass. 556, and cases We express no opinion on the duty of the trial judge with reference to the parties responsible for the publication of......

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