Commonwealth v. Keenan

• Decision Date: 31 January 1886
• Citation: 140 Mass. 481,5 N.E. 477
• Parties: COMMONWEALTH v. KEENAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 481

5 N.E. 477

COMMONWEALTH

v.KEENAN.

Supreme Judicial Court of Massachusetts.

Filed January, 1886.

Complaint to the municipal court of Boston under Pub.St. c. 57, § 5, for selling adulterated milk, to-wit, milk containing less than 13 per cent. of milk solids. At the trial in the superior court, when the jury retired to make up its verdict, a paper was given to it which purported to be a true copy of the complaint, except that the word “thirteen” in the original appeared as “thirtee” in the copy which was handed to the jurors. No other paper was given to the jury, and at the time the paper in question was given to the jury neither the defendant nor his counsel had any knowledge that it was not a copy of said judgment, and it was not until after a verdict had been rendered that defendant's counsel learned of the fact and made a motion for a new trial on the ground that the paper was improperly submitted to the jury. There were only two issues presented for the consideration of the jury: First, as to whether or not the milk in question contained less than 13 per cent. of solids, or more than 87 per cent. of water; and, second, whether or not it was in the possession of the defendant. The judge instructed the jury as to what would constitute an adulteration under the statute, and also what would be a possession by the defendant, and to these instructions no exceptions were taken by the defendant. At the hearing on the motion for a new trial, no evidence was introduced that said paper had or had not influenced the members of the jury, or been read by them, and the presiding judge overruled the motion. The jury returned a verdict of guilty, and the defendant alleged exceptions.

C.F. Paige, for defendant.

H.N. Shepard, Asst. Atty. Gen., and E.J. Sherman, Atty. Gen., for the Commonwealth.

FIELD, J.

The motion for a new trial was addressed to the discretion of the superior court, unless upon the admitted facts, the defendant was entitled, as matter of law, to a new trial. Nichols v. Nichols, 136 Mass. 256. By the words “a copy of the judgment,” in Pub.St. c. 154, § 61, is meant such a copy of the record as includes the substance of the complaint, and the judgment entered on it. A copy of the judgment, without the substance of the charge, would be unintelligible. An attested copy of the complaint was properly allowed to go to the jury. It seems that it is the practice to send up a copy of the complaint, in addition to the substance...