Commonwealth v. Coyne

• Decision Date: 22 November 1910
• Citation: 92 N.E. 1028,207 Mass. 21
• Parties: COMMONWEALTH v. COYNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 21

92 N.E. 1028

COMMONWEALTH v. COYNE.

Supreme Judicial Court of Massachusetts, Bristol.

November 22, 1910

COUNSEL

Charles R. Cummings and James Little, for petitioner.

James M. Swift, Dist. Atty., and Frank B. Fox, Asst. Dist. Atty for the Commonwealth.

OPINION

BRALEY J.

The question for decision is whether the defendant, having been charged in a single count for a sale of intoxicating liquor to a minor in violation of Rev. Laws, c. 100, § 62, had the right where the evidence for the prosecution tended to prove two distinct sales on different days, but all within six years from the date of the complaint, to require the government to elect upon which one of the two it intended to rely for a conviction. If counts for each sale had been joined, the defendant would have had ample notice of the charges, which could be distinctly identified by the record and while the trial court upon his motion might have ordered an election, the denial of the request being purely discretionary would not have been ground of exception. Com. v. Sullivan, 104 Mass. 552; Com. v Bennett, 118 Mass. 443; Com. v. Pratt, 137 Mass. 98. But at the close of the government's evidence while he had been set to the bar to face a single issue, two distinct offenses had been put in evidence, to either one of which the averments of the complaint were applicable. By the common law as well as under the Constitution of the commonwealth, he could not be convicted of both without a violation of the right guaranteed to him that, when charged with the commission of crime, 'every subject shall have a right to produce all proof that may be favorable to him' on the issue of his guilt or innocence as set forth in the indictment or complaint. Com. v. Blood, 4 Cray, 31, 32; Com. v. Dean, 109 Mass. 349, 352; O'Connell v. Reg., 11 Cl. & Fin. 155, 241; Com. v. King, 202 Mass. 379, 389, 88 N.E. 454. There is no presumption that the defendant ought to have anticipated that the scope of the testimony to be used against him would not correspond with the essential allegations of the complaint, and that he must expect to be tried for two offenses, although the averment of time, while necessary, need not be proved as laid. Com. v. Dillane, 11 Gray, 67. The great embarrassment, however, to which he would be subjected in the preparation and presentation of his defense if under the charge of a single crime any number of similar yet distinct crimes may be proved, until perhaps there finally might be one of the number sufficiently satisfactory to the jury, is not the only grave objection. It is forcibly pointed out in State v. Chisnell, 36 W.Va. 659, 15 S.E. 412, that where in the unlawful sale of intoxicating liquors two distinct misdemeanors are proved, while only a single sale is charged, some of the jury may be satisfied of the defendant's guilt as to one sale, while other jurors are convinced only as to the second sale, but all finally concur in a verdict of guilty because taken together they are convinced that the defendant has violated the law. It is also manifest that the wrong which may be done does not end with the verdict and judgment. If again prosecuted, there being no means of indentification of the actual offense upon which the jury returned their verdict, the former conviction would not be a protection from a second conviction. There is no bar unless the offense charged in the first complaint was the same offense for which the defendant is charged...