Commonwealth v. Filburn

• Decision Date: 04 January 1876
• Citation: 119 Mass. 297
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. Owen Filburn & others

119 Mass. 297

Commonwealth v. Owen Filburn & others

Supreme Court of Massachusetts

January 4, 1876

Argued October 5, 1875

Worcester. Indictment on the Gen. Sts. c. 163, § 12 alleging that "Patrick Gibbons of Clinton, in said county, on the thirteenth day of September, in the year eighteen hundred and seventy-four, at Clinton, in said county, was guilty of the crime of drunkenness, in a public street in said Clinton, by the voluntary use of intoxicating liquor, and that the said Patrick Gibbons, at the time and place said offence was committed, in manner and form aforesaid, to wit: on the said thirteenth day of September in the year aforesaid, at Clinton aforesaid, in a public street as aforesaid, was lawfully arrested for said offence by one Edward J. Plunket, he being then and there a constable of said Clinton, duly chosen, appointed and qualified to discharge and perform the duties of that office, and also being then and there in the due and lawful execution of the same, and also being then and there in the peace of said Commonwealth, and that Owen Filburn, Thomas O'Maley Walter Burke and Philip Filburn, all of said Clinton, did then and there unlawfully aid and assist the said Patrick Gibbons in then and there unlawfully escaping fro the said lawful custody of said Edward J. Plunket.".

In the Superior Court, before the jury were empaneled, the defendants filed a motion to quash the indictment on the following grounds:.

"There is not set forth in said indictment any offence known to the law of this Commonwealth. There is not any offence plainly, formally and substantially described in said indictment. It is not alleged in said indictment that the defendant Gibbons was taken into the custody of Plunket.

"It is not alleged that the defendant Gibbons escaped from the custody of Plunket. It is not alleged that the defendants applied any force or made any threat or did any other thing to compel said Plunket to release said Gibbons. It is nowhere alleged in said indictment that the defendants knew that the said Gibbons was arrested by the said Plunket, that they knew that said Plunket was a constable, or that he was in the lawful discharge of his said office. All the allegations of said indictment may be true, and yet no offence have been committed, and the said indictment is otherwise defective, informal and insufficient."

Bacon, J., overruled the motion. The defendants were tried and found guilty, and after verdict filed a motion in arrest of judgment, assigning substantially the same reasons as in their motion to quash. This motion was also overruled; and the defendants alleged exceptions.

Exceptions sustained.

M. J. McCafferty, for the defendants.

C. R. Train, Attorney General, for the Commonwealth.

Morton J. Ames, J., absent.

OPINION

Morton, J.

The defendants are indicted under the Gen. Sts. c. 163 § 12, which provides a punishment for any person who "aids or assists a prisoner in escaping, or attempting to escape, from an officer or person who has the lawful custody of such prisoner." It is clear that...