Commonwealth v. Dunster

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON
• Citation: 13 N.E. 350,145 Mass. 101
• Decision Date: 19 October 1887
• Parties: COMMONWEALTH v. DUNSTER.

145 Mass. 101
13 N.E. 350

COMMONWEALTH
v.
DUNSTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1887.

Exceptions from superior court, Worcester county; KNOWLTON, Judge.

Complaint charging the defendant with keeping and maintaining a tenement at Worcester for the illegal sale and illegal keeping of intoxicating liquors, said tenement so used as aforesaid being a common nuisance. The jury returned a verdict of guilty, and the defendant alleged exceptions. The facts are stated in the opinion.

145 Mass. 104]J.E. Sullivan, for defendant.

An offense is in its nature not divisible. It may consist of a single act, or of a series of acts, but that series of acts constitutes but one offense. This complaint, although it may be continuous in its nature, alleges but a single offense, and the defendant can be punished only for one offense. The offense not being divisible, a nolle prosequi applied to any part of the complaint must apply to the whole. Com. v. McMonagle, 1 Mass. 517;Com. v. Tuck, 20 Pick. 356. The effect of permitting a nolle prosequi would be to allow the government to amend the complaint after the defendant has been once tried on it in the court below. The defendant who is mentioned in the plea in bar is the same defendant mentioned in this complaint. It is admitted that the tenement spoken of in this complaint, and in the plea in bar, is the same. This case would seem, then, to be similar to Com. v. Robinson, 126 Mass. 259, and the reasoning which applies to that case applies equally to this.

A.J. Waterman, Atty. Gen., for the Commonwealth.

[145 Mass. 101]MORTON, C.J.

This is a complaint to the Central district court of Worcester, which charges that the defendant, “on the first day of May, in the year 1886, at Worcester, in said county, and on divers other days and times between that day and the seventeenth day of November, in the year 1886, did

[13 N.E. 351

keep and maintain a certain tenement there situate, then and there used for the illegal sale and for the illegal keeping of intoxicating liquors.” The defendant was convicted in the district court, and appealed to the superior court. In the latter court, before impaneling the jury, the district attorney indorsed on the back of the complaint the following: “Now, before the impaneling [145 Mass. 102]of the jury, I ‘nol. pros.’ so much of the within complaint as alleges any offense or unlawful act prior to October 5, 1886.” The defendant objected to the district attorney's right to do this,...