Commonwealth v. Ferry
| Decision Date | 28 February 1888 |
| Citation | 15 N.E. 484,146 Mass. 203 |
| Parties | COMMONWEALTH v. FERRY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E.W. Burdette, for defendant.
Exceptions Touching the Sufficiency of the Complaint. The complaint does not allege that the apparatus, books, and other devices referred to therein were fitted or intended for use for registering bets, or for buying or selling pools, or for any unlawful purpose. Such allegation is essential; and the unlawful character of the apparatus, books, or devices employed, or the use to which they are intended to be put, is important. The registering of bets must necessarily require the use of some kind of a book, apparatus, or device fitted for the purpose intended; and so, too, of the buying and selling of pools. If such apparatus or devices are lawful in themselves, or not intended for use in any unlawful purpose they are not such as are referred to in the statute; and as this complaint does not characterize them, or their intended use, as unlawful, it is insufficient. The statute is not aimed against pool-selling or bet-registering generally, but only against those connected with establishments or places especially kept, occupied, and fitted up for the prosecution of the business. Like the evils sought to be suppressed by the laws against gambling-houses, "the mischief which the statute seeks to prevent is the existence of such places of resort, with the temptations which they hold out, and the vices which they engender and encourage." Com. v Stahl, 7 Allen, 305. The character of the place and of its fittings becomes, therefore, an essential foundation for the offenses prohibited by the statute, and must be clearly set forth in the complaint. The complaint improperly charges the defendant with having been engaged in both the business and employment prohibited by the statute. These words are not synonymous, but were intended to reach two classes of persons,--employers and employes; those engaged in the prosecution of the business, and those employed by them. The allegation of the complaint that the defendant was, at the time and place named, engaged in the business and employment of buying and selling pools and registering bets, is equivalent to an allegation that he was then and there both principal and agent, employer and employe, which is manifestly bad. The allegation that the defendant was engaged in the business and employment of both registering bets and selling pools is open to the objection of duplicity. That part of the statute under which this complaint is drawn contemplates at least two kinds of unlawful business,--that of registering bets, and that of buying or selling pools. There is nothing in the complaint, or in the nature of the case, to show that the business of registering bets and that of selling pools have any connection with each other, or constitute one transaction, or parts of one transaction, or represent different stages of the same offense. They are not therefore, within any exception to the rule that only one offense can be made the subject of a single count. Com v. Moody, 143 Mass. 177, 9 N.E. 511, is not understood to be opposed to this position; on the contrary, it recognizes the fact that the registering of bets and the selling of pools are distinct and separate offenses. The complaint contains no allegation as to the method or manner of conducting the business or employment therein referred to, or of registering the bets or selling the pools therein referred to, or any description or definition of said pools and bets; nor does it allege any facts or circumstances connected with the business, or with the registering of the bets, or the selling of the pools, to identify the offense charged, or to give the defendant reasonable notice of the character of the offenses alleged against him. The trials and contests of speed between contesting horses, referred to in the complaint, are not in any way identified or described, nor are the contesting horses referred to in the complaint so identified or described. Under the loose language of the complaint in this regard, the defendant might be convicted of carrying on the business of registering bets and selling pools upon any trials and contests of speed, taking place at any time, times, or places, without previous notice of any of these particulars. He might be prepared to meet one charge, and at the trial be confronted with evidence of an entirely different offense,--a burden which the law does not impose upon any defendant.
Exceptions Touching Errors at the Trial. The date of the offense as alleged in the complaint, and as elected by the prosecuting officer, was May 28, 1887; but evidence was admitted tending to show that the defendant was guilty of the same offense, at the place named, upon numerous other days prior to May 28th. This evidence was admitted, against the defendant's objection, "for the purpose of showing the character of the business carried on in the premises," or, as stated by the presiding judge, "only as it related to the question whether the premises were kept for the purpose named in the complaint on the 28th of May, and for that purpose alone." This ruling assumes and admits the existence of the well-established principle of law that it is not in general competent to introduce evidence tending to prove a similar, but distinct, offense, for the purpose of raising an inference or presumption that the accused committed the crime with which he is charged. Jordan v. Osgood, 109 Mass. 457; Com. v. Jackson, 132 Mass. 16, 18. There are certain limited and well-defined classes of cases where evidence tending to prove an offense similar to, but distinct from, that charged, is admitted. Thus as, in most cases, a criminal intent must be proved, evidence which legitimately bears upon the guilty knowledge or criminal intent of the defendant may be introduced, even though it be derived from circumstances which also show the commission of another offense. Com. v. Bigelow, 8 Metc. 235. It is further admissible to show independent acts or crimes, where such acts or crimes are connected with the act or crime in question by unity of plan or motive, and therefore bear upon the purpose the criminality of which is in question. But where there is no connection between the act alleged and the other transactions from which the jury can find a purpose common to all, evidence of such other transactions will not be admitted. Horton v. Weiner, 124 Mass. 92; Com. v. Jackson, 132 Mass. 16; Com. v. Damon, 136 Mass. 441. Upon the same principle evidence has been held admissible of other transactions, where previous attempts have been made to commit some crime; the previous acts tending to show a thus existing purpose, which may be presumed to continue. Com. v. Bradford, 126 Mass. 42; Com. v. Abbott, 130 Mass. 472. The evidence admitted in this case does not come within any of the exceptions, and it has often been suggested that this species of evidence is dangerous. Com. v. Jackson, 132 Mass. 16, 21. This evidence had no tendency to throw light upon the intent of the defendant in doing the act in question, because, if the act be proved, the criminal intent is necessarily inferred from the act itself. There is no necessity for the introduction of the evidence, for the character of the business may be determined as well by seeing the defendant doing certain things upon one occasion as upon several. There is no settled purpose or plan which is provable by the evidence in question. If the evidence was not admissible for the purpose stated by the judge in his charge to the jury, the exceptions must be sustained. Decisions upon analogous questions tend to show that the evidence in question was inadmissible. In an indictment for obtaining the property of another by false pretenses in a sale, evidence of similar pretenses made by the defendant, in sales to other persons, a short time previous to the sale in question, is inadmissable for showing the intent with which the defendant made the sale charged in the indictment. Com. v. Jackson, 132 Mass. 16. In cases where the issue is whether the defendants were negligent at a certain time, it is not competent to put in evidence similar acts of negligence on their part at other times. Maguire v. Railroad Co., 115 Mass. 239; Whitney v. Gross, 140 Mass. 232, 5 N.E. 619; Hatt v. Nay, 144 Mass. 186, 10 N.E. 807. Where the question is whether the defendant committed a certain riotous act, evidence of other riotous acts at different places, and several hours earlier, is incompetent, unless the various acts were all parts of one continuous transaction. Com. v. Campbell, 7 Allen, 541. Upon the issue whether a promissory note was forged, it is inadmissible to show that the plaintiff has committed similar forgeries, or that he has the capacity, skill, and appliances which would enable him to forge the note. Costello v. Crowell, 139 Mass. 588, 2 N.E. 698. It did not appear in the superior court that the defendant was being tried for the same offense of which he was convicted in the court below, and the burden was on the government to establish this fact affirmatively. Com. v. Blood, 4 Gray, 31; Com. v. Phelps, 11 Gray, 72; Com. v. Foynes, 126 Mass. 267. On the other hand, it was affirmatively established by the defendant that in the lower court evidence was introduced tending to show that he had been guilty of the offense charged, in the premises in question, upon several other days than that named in the complaint. There was nothing to show upon which date he was convicted in the lower court, and it was entirely uncertain whether he was being held to answer for the offense from the conviction upon which he had appealed. He was therefore entitled to a verdict of acquittal by order of the court,...
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