Commonwealth v. Jenks

• Decision Date: 07 January 1885
• Citation: 138 Mass. 484
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. James Jenks & another

138 Mass. 484

Commonwealth v. James Jenks & another

Supreme Judicial Court of Massachusetts

January 7, 1885

Argued November 24, 1884. [Syllabus Material] [Syllabus Material]

Suffolk.

Indictment against James Jenks and Elisha Douglass, charging them with the larceny, on January 17, 1884, at Boston, of divers promissory notes of the amount and value of $ 50, of the property of one John McGrath. Trial in the Superior Court before Staples, J., who allowed a bill of exceptions, in substance as follows:

Before the jury were empaneled, the defendant filed a motion to quash the indictment, "because the same is uncertain indefinite, and insufficient." The judge overruled the motion; and the defendants excepted.

McGrath was called as a witness by the government, and testified that the property stolen from him was certain national bank bills in the usual form, of the amount and value, in all, of fifty dollars. The defendants asked the judge to rule that such bank-bills would not be covered by the indictment; and that there was a variance. The judge ruled otherwise, and admitted the testimony; and the defendants excepted.

The contention of the government was, that the two defendants, acting in concert and as confederates, stole from McGrath the money described in the indictment, on the day named therein, at a drinking-saloon in Boston.

Morris Kylie testified for the government, that he saw Jenks at West Newton three weeks before, and heard him say to McGrath that he wanted a settlement.

Dennis Connors testified for the government, that he saw Douglass and McGrath go into a saloon together; that he saw Douglass come out, McGrath following, and saying that he had lost fifty dollars; that he saw another man, whose face he did not see; that after Douglass was arrested he said he would give up the money if the old man would go back to the store.

Joseph H. Knox, an officer, testified for the government, as follows: "I arrested Douglass the same day. I asked him if he had McGrath's money. He said Jenks had it. I searched him, and found two dollars on him."

One Lynch, an officer, testified for the government, as follows: "I know both the defendants. I arrested Jenks the next day. Searched for him the day before, and could not find him. I have always seen Douglass and Jenks going together."

McGrath testified for the government as follows: "I reside in Michigan, and am stopping at West Newton. On January 17, 1884, I came to Boston on the Lowell Railroad; and, on leaving the Lowell depot to go to the West Newton depot, I met the defendant Douglass on the street, and went with him to a saloon. I lost at the saloon one twenty-dollar bill and three ten-dollar bills, all United States national bank bills. I met Douglass in the street near to the depot. He spoke to me. He said I looked like a man who had bought some goods of him. He called me by another name. I told him that was not my name. He asked what was my name. I told him. He then told me he would show me the depot. He took me into a saloon and gave me a cigar and a glass of whiskey. Douglass and another man began to throw dice on the counter for the drinks. They quarrelled, and wanted me to make peace between them. They began to bet. I pulled out my money to bet and make peace between them. I took it out to bet between them. Douglass wanted me to bet. I played no dice at all. I took out fifty dollars and put a twenty-dollar bill out of it on the counter, and had the rest in my hand, and there was no playing after that. I was going to bet. Douglass took the money out of my hand and also that on the counter, and ran away. They did not shake any dice after I said I would bet. The other man, whom I now think to be the defendant Jenks, stayed. I followed Douglass up. No dice were shaken at all on my money. No one else took out fifty dollars or any sum."

On cross-examination, he testified as follows: "I met Douglass on the street. He spoke first. He said, come into the saloon and he would go with me to the depot. Saw two in there. I drank whiskey. I said I would have whiskey. Douglass and I were at the counter. The other man was playing with dice. Douglass and the other man were at the counter. Nothing was said about shaking for drinks. I took dice in my hand and shook twice. Douglass showed me; it was after I drank; before, I did not shake. I shook only twice. I stood at the counter a few minutes; took cigar at the counter, shook dice between the drinks. I think I shook dice after the drinks. Something was said about betting. Douglass wanted me to bet who would win. Did not shake on the first drinks, on which the other two had put up five dollars soon after I entered the saloon. I never before that day took dice in my hand. Don't know who won the five dollars."

McGrath, on cross-examination, further testified: "Jenks came out to Newton and wanted me to settle. This was three weeks ago. He said he would be back in the evening, but he did not come. I did not then tell him he was there. I did not intimate to him that I had seen him before. He came there as though he was that man's (Douglass's) friend. When I saw Jenks at West Newton I did not recognize him as the other man, but now I think I do."

The defendants offered no...