Commonwealth v. Ismahl

• Decision Date: 15 January 1883
• Citation: 134 Mass. 201
• Parties: Commonwealth v. Lilly Ismahl
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 201

Commonwealth v. Lilly Ismahl

Supreme Court of Massachusetts

January 15, 1883

Suffolk. Indictment in two counts: the first count charged the defendant, under the Pub. Sts. c. 101, §§ 6, 7 with keeping and maintaining a certain common nuisance, to wit, a tenement used as a house of ill-fame; and the second count, at common law, charged her with maintaining a disorderly house, during the same times charged in the first count.

In the Superior Court, before the jury was empanelled, the defendant moved to quash the indictment for the following reasons among others: "1. The matter set forth in said indictment is not sufficient in law, for that the indictment purports to be a presentment in two counts, whereas but one offence is set forth in whet purports to be two counts. In the first count, so called, the offence charged is that of a common nuisance, and in the second count, so called, the defendant is charged with the same common nuisance at one and the same time. 2. Said indictment is void, for the reason that the indictment describes different offences dependent upon the same facts or transactions, without an averment that the different counts therein are different descriptions of the same acts." Staples, J. overruled the motion.

At the trial, the defendant, after the evidence was closed, asked the judge to rule that the government must elect on which of the two counts it would go to the jury, for the reason that the evidence showed but one state of facts or transactions and both counts were dependent upon the same facts, and had relation to the same house and time, and the same acts done in said house. The judge declined so to rule, but ruled that the jury could only convict the defendant on one of the counts, and that the whole evidence was before the jury, and they might apply the same to either of the counts to which they might find it applicable; and if they found either count proved by the evidence beyond a reasonable doubt, they might convict on such count, and in that case they must acquit here on the other.

The jury returned a verdict of guilty on the first count, and a verdict of not guilty on the second count; and the defendant alleged exceptions.

Exceptions overruled.

G. E. Filkins & J. P. J. Ward, for the defendant.

G. Marston, Attorney General, & C. H. Barrows, Assistant Attorney General, for the Commonwealth.

Devens J. Field & W. Allen, JJ., absent.

OPINION

Devens, J.

The exceptions taken by the defendant are well...