Commonwealth v. Foynes

• Decision Date: 26 February 1879
• Citation: 126 Mass. 267
• Parties: Commonwealth v. Michael Foynes
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 267

Commonwealth v. Michael Foynes

Supreme Court of Massachusetts

February 26, 1879

Essex. Complaint to the Police Court of Lynn, purporting to be made by "W. Stone," and signed "William Foynes," charging the defendant with unlawfully keeping intoxicating liquor, with intent unlawfully to sell the same in this Commonwealth.

In the Superior Court, on the day after the jury had returned a verdict of guilty, Putnam, J., without the knowledge or consent of the defendant or his counsel, and without either of them being in court, permitted the copies of the complaint filed in court, upon which the defendant was tried and convicted, and to which complaint objection and exception had been taken by the defendant before a jury had been sworn or empanelled, to be amended upon motion of the clerk of the Police Court of Lynn, by striking out the name "Foynes" after the name "William" in the signature to the complaint, and inserting the name "Stone," so that the record stood as if the signature and oath to the complaint were made by William Stone instead of William Foynes. The defendant was not called upon to answer or plead to the complaint as amended.

To the ruling of the judge permitting the amendment, the defendant excepted; and also filed a motion in arrest of judgment for the same cause, which motion was overruled. The defendant alleged exceptions.

Exceptions sustained.

H. F Hurlburt, for the defendant.

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

Soule J. Colt & Endicott, JJ., absent.

OPINION

Soule, J.

It is well established in this Commonwealth that the copies sent up from a Police Court or a justice of the peace to the appellate court, in case of appeal by a defendant in criminal proceedings, may be amended at any time before the case has been submitted to the jury in the appellate court. Commonwealth v. Phillips, 11 Pick. 28. Commonwealth v. Doty, 2 Met. 18. Commonwealth v. Magoun, 14 Gray 398. It is equally well settled that the trial in the appellate court must be on the original allegation of offence, and for the same offence for which the defendant was tried in the court appealed from. A conviction will not be sustained when it appears that the certified copy charges the offence to have been committed on a different day from that charged in the original complaint. Commonwealth v. Phelps, 11 Gray 72. A complaint for unlawfully selling intoxicating liquor to a person unknown,...