Commonwealth v. Duggan

• Decision Date: 23 November 1926
• Parties: COMMONWEALTH v. DUGGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 465

154 N.E. 67

COMMONWEALTH

v.DUGGAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 23, 1926.

Exceptions from Superior Criminal Court, Middlesex County; O. A. Marden, Judge.

Michael J. Duggan was convicted of operating an automobile while under the influence of intoxicating liquor, and he excepts. Motion for diminution of bill of exceptions denied. Exceptions sustained.A. K. Reading, Dist. Atty., and S. H. Lewis, Asst. Dist. Atty., both of Boston, for the Commonwealth.

P. A. Guthrie, of Boston, for defendant.

RUGG, C. J.

This is a complaint for operating an automobile while under the influence of intoxicating liquor. G. L. c. 90, § 24. The copy of the complaint in the record before us is dated on the 1st day of April, 1925, and charges that the defendant operated an automobile on a public way while under the influence of liquor on March 8, 1925. It contains no allegation that it was a second offense. The record further shows that the defendant was found guilty in the district court and that he duly appealed.

It is stated in the bill of exceptions that a complaint for the same offense was made against the defendant on March 9, 1925, and that he was on that day arraigned before the district court, and the case at his request was continued until April 1, 1925; that on April 1, 1925, he was tried and found guilty and sentenced, and appealed.

When the case came on for trial, but before the defendant was called to the bar, in the superior court he filed what is termed in the exceptions a ‘motion to quash.’ It was averred in this motion by the defendant, after saving his rights under his plea of not guilty theretofore pleaded, that the complaint, after the arrest of the defendant, was altered by the clerk of the court, at the request of a third person representing himself to be attorney for the defendant, so as to charge a second offense of operating a motor vehicle under the influence of liquor; that at the trial it developed that this person was not attorney for the defendant; whereupon the clerk, without the consent of the defendant and after the trial in the district court, prepared a new complaint on which the finding of the judge was made. This motion was denied on the ground that it was filed too late. The defendant also filed what is termed a ‘plea in abatement,’ at the same time saving his rights under the plea of not guilty theretofore pleaded. The only material facts set forth are those stated in the ‘motion to quash’ (although there are set out in it, also, numerous irrelevant matters concerning one Votour), together with the further averment that the complaint dated March 9, 1925, which was amended and upon which the defendant was arrested and tried, ‘has been lost or destroyed, and has not been returned to this [the superior] court and the complaint which is now before this [superior] court, is one upon which the defendant has not been tried, but one upon which he has nevertheless been found guilty.’ The defendant also filed a paper entitled a ‘plea in bar,’ wherein, after reserving his rights under his plea of not guilty, it was set up that he ‘was previously convicted and sentenced for the same offence as set forth in complaint dated March 9, 1925, as is now charged agaisnt him in complaint dated April 1, 1925 and upon which he has been placed on trial.’ It is stated in the record that a hearing was refused on each of these two last-mentioned matters. In conjunction with the recital of these two pleas, it is stated that the defendant made an offer of proof of testimony by the clerk and the probation officer of the district court in support of the facts set out in the two pleas, which the court excluded. We interpret this part of the exceptions to mean that the judge refused to hear oral testimony of the nature offered in support of the facts alleged in the pleas and that the defendant offered nothing beside oral testimony in support of them and that they were denied.

It is to be observed that in each of these papers filed by the defendant it is implied, if not expressly stated, that he had pleaded not guilty. A general plea admits the sufficiency of the complaint and is waiver of all matters in abatement. Lebowitch v. Commonwealth, 235 Mass. 357, 362, 363, 126 N. E. 831, and cases there collected. Commonwealth v. Leventhal, 236 Mass. 516, 523, 128 N. E. 864.

[2] The case at bar does not fall within that rule but presents a different question. The copies of all papers of record in the superior court are before us, under G. L. c. 212, § 11. Among those papers is certification of the record of proceedings in the district court. It there is stated that the defendant appeared before the district court without warrant on the 9th day of March, 1925, to answer to a complaint received and sworn to on the 9th day of March, 1925, wherein it is charged that the defendant on the 8th day of March, 1925, at Winchester did operate an automobile on a public way while under the influence of intoxicating liquor, ‘and is more fully set forth in said complaint now on file in said court and numbered 6938,’ that the defendant pleaded not guilty, and the complaint was continued from time to time until the 1st day of April, 1925, when he was found guilty and sentenced to the house of correction for two months, from which sentence he appealed to the superior court and gave recognizance as required. Thus, according to this certificate duly attested by the clerk of the district court, it appears that the defendant was tried and found guilty in that court on a complaint dated March 9, 1925. The copy of the complaint transmitted by the district court duly attested by its clerk to the superior court states that the complaint was received and sworn to on the 1st day of April, 1925, although it is certified to be ‘a true copy of complaint No. 6938,’ being the same number, according to the certification of record, as the number of the complaint received and sworn to on March 9, 1926. The defendant was tried and found guilty in the superior court on the copy of complaint...