Commonwealth v. Gross

• Decision Date: 01 April 1949
• Citation: 324 Mass. 123,85 N.E.2d 249
• Parties: COMMONWEALTH v. GROSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 123

85 N.E.2d 249

COMMONWEALTH

v.GROSS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1949.

Exceptions from Superior Court, Suffolk County; Higgins and Morley, Judges.

Joseph H. Gross was convicted of neglecting and refusing to contribute reasonably to support and maintenance of certain illegitimate minor child of which he was found to be the father, and he brings exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

J. F. McAuliffe, of Boston, for Commonwealth.

J. C. Johnston, of Boston, for defendant.

WILLIAMS, Justice.

After a verdict of guilty on an indictment returned on January 9, 1948, charging that the defendant ‘on the eighth day of January in the year * * * [1943], and on divers other days and times between that day and the day of the presentment of this indictment, being the father of a certain illegitimate minor child named Richard J. Harrison Gross, did neglect and refuse to contribute reasonably to its support and maintenance,’ the defendant was placed on probation and ordered to pay a weekly sum for the support of the child and the confinement expenses of the child's mother. The defendant excepted to the denial of his special plea ‘that there has been no final adjudication of the paternity of said child, and that no indictment or complaint charging the defendant with getting the complainant with said child has been found and filed within six years from the date of the commission of said crime,’ and to the denial of his motion that the jury be instructed to return a verdict of not guilty.

There was no error in the ‘denial’ of the plea. It is to be construed as an adjudication that it was insufficient in law. The defendant was not charged with the offence of begetting, but, under G.L.(Ter.Ed.) c. 273, § 15, with failure to support his illegitimate child during the period from January 8, 1943, to January 9, 1948. No question of statutory limitation arises. There was no necessity of prior adjudication of paternity, as § 15 provides that where there is no such adjudication ‘the question of paternity shall be determined in proceedings hereunder.’ See Commonwealth v. Bird, 264 Mass. 485, 162 N.E. 900.

There was evidence that the defendant was the father of the illegitimate child named in the indictment; that the child was begotten in New York City and that he was born there on November 23, 1941. The defendant testified that he was single and lived with his family in Revere, Massachusetts, until he enlisted in the United States Navy in 1940; that he left his home in Revere in April, 1941, for service in the navy and did not return to Massachusetts until 1946; that he returned to his family's home in Revere in May, 1946; and that he had lived there continuously until the time of the trial. It is the contention of the defendant that the court was without jurisdiction of the case because (1) no offence known to the law was charged in the indictment, (2) the complainant (the mother) and the child from the time of his conception to the time of the indictment were domiciled and resident in New York, and (3) it does not appear where the defendant was domiciled and resident at the time of the commission of the offence. Although not phrased according to the forms suggested in G.L.(Ter.Ed.) c. 277, § 79, for use in charging continuing offences, the indictment properly charges the offence described in G.L.(Ter.Ed.) c. 273, § 15. Section 79, designed to promote the simplification of criminal pleadings, makes the forms, suggested therein, sufficient when used, but not mandatory. It provides that ‘any other form of indictment or complaint...