Commonwealth v. Leach

• Decision Date: 16 October 1923
• Citation: 246 Mass. 464
• Parties: COMMONWEALTH v. ISADORE LEACH. SAME v. MORRIS BERKMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 464

COMMONWEALTH v. ISADORE LEACH. SAME v. MORRIS BERKMAN.

Supreme Judicial Court of Massachusetts.

October 16, 1923

October 9, 1923.

Present: RUGG, C

J., BRALEY, DE COURCY, PIERCE, & JENNEY, JJ.

Constitutional Law Judiciary. Jurisdiction. District Court. Superior Court. Practice, Criminal, Trial before district judge under St 1923, c. 469, Exceptions. Intoxicating Liquor. Evidence Presumptions and burden of proof. Every statute is presumed to be within the constitutional power of the

Legislature and its enforcement is not to be refused unless clearly and manifestly outside and beyond that power.

St. 1923, c.

469, establishes no new courts, creates no new judges, provides for no new officers, in its utmost sweep utilizes existing courts and employs judges already appointed and commissioned for different service from that hitherto required, and violates no one of the provisions of the Constitution.

A judge of a district court, when sitting in the Superior Court in compliance with a request of the Chief Justice of the Superior Court and under the provisions of St. 1923, c. 469, is not created a judge of the

Superior Court for the time being and his jurisdiction over offences is not enlarged.

So far as St. 1923, c. 469, effected a mere enlargement of jurisdiction of those holding commissions as judges of district courts, it was within the scope of the power of the General Court under the provisions of the

Constitution and the decisions of this court.

Defendants have no constitutional right to a trial by jury in any particular court so long as the essentials of the trial by jury secured by the Constitution are preserved.

A defendant appealing from a sentence imposed by a district court has no constitutional right to a trial by a jury before a judge of the Superior

Court.

G.L.c. 278, Section 18, in its constitutional aspect preserved and was intended to preserve a right of trial by jury to defendants appealing from a sentence in a district court: otherwise that seetion was wholly under the control of the General Court and must be taken to be modified by St. 1923, c. 469.

The effect of St. 1923, c. 469, is that district court judges are empowered, when so called on, to use the machinery of the Superior Court with which to try and dispose of cases within the general jurisdiction of district courts, the trials, sentences and dispositions are in their substance and effect upon the public and upon the defendants the same as if held in the Superior Court, but the judges continue to act as district court judges with the added force given to their judicial conduct by the statute.

A district court judge, in allowing exceptions saved at a trial before him under the provisions of St. 1923, c. 469, should designate himself,

"District Court Judge sitting under St. 1923, c. 469."

At the trial of complaints charging a defendant with an illegal sale of intoxicating liquor and with keeping and exposing intoxicating liquor for sale with intent to sell it unlawfully, there was evidence that a sergeant of police, having first made note of the number of each of two pieces of paper money, gave them to a man who later used them in buying intoxicating liquor from the defendant in his shop; that later one of these bills was obtained from a man to whom the defendant had paid it in settlement of an account and the other bill was obtained from the defendant, and that both bills were in possession of the sergeant of police at the trial. The defendant asked for rulings in effect that there was no purchase nor sale of the liquor and no payment therefor and that the whole transaction was a subterfuge. The rulings were refused.

Held, that, the delivery of intoxicating liquor by the defendant in a place other than a dwelling house being made by the statute prima facie evidence of a sale, and there being other ample evidence of a sale, the rulings rightly were refused.

TWO COMPLAINTS, received and sworn to in the Municipal Court of the City of Boston on December 7, 1922, and January 8, 1923, respectively, the first charging the defendant

Isadore Leach with keeping and exposing intoxicating liquor on December 7 with intent unlawfully to sell the same, and the second charging the same defendant with unlawfully selling intoxicating liquor on January 7, 1923. Also

TWO COMPLAINTS, received and sworn to in the Municipal Court of the Brighton District on April 28, 1922, the first charging the defendant Morris Berkman with unlawfully selling intoxicating liquors on that day and the second charging him with unlawfully keeping and exposing intoxicating liquors for sale, with intent unlawfully to sell the same. Also a

COMPLAINT, received and sworn to in the Third District Court of Eastern Middlesex on July 5, 1923, charging the defendant Fred Tarter with exposing and keeping for sale intoxicating liquors with intent unlawfully to sell the same.

All the defendants were convicted in the respective courts and appealed to the Superior Court.

On August 3, 1923, the Chief Justice of the Superior Court made the following order: "Pursuant to the provisions of chapter 469 of the Acts of the Commonwealth of Massachusetts, in the year one thousand nine hundred and twenty three, I request you Arthur P. Stone, a Justice of a District Court in the Commonwealth, to sit in the Superior Court and perform all the duties authorized by said act, and have and exercise all the powers as provided therein, beginning on August 3, 1923, to and including the 31st day of December, 1923."

On the same day, the Chief Justice made an order in like terms, requesting of "Jeremiah J. Mahoney a Justice of a District Court in this Commonwealth," that he perform duties of the same description.

The complaints in the first case were tried before Stone, J., and a jury, and the defendant was found guilty. The defendant then filed the following motion, entitled, "Motion to set aside Verdict:" "Now comes the defendant in the above entitled cause and says he was put to trial before an alleged court and that the jury in said court purported to bring in a verdict of guilty against the defendant; that said proceedings before said court were null and void and that the verdict of said jury is of no effect. Wherefore the defendant moves that said verdict be set aside and expunged from the records of said case."

The defendant also filed a "Motion to arrest Judgment" on each complaint on the ground that Stone, J., "had no authority to act as a justice of this court and that the proceedings before" him "were irregular and void and that the alleged verdict of said jury is of no force and effect and that said Acts of 1923, Chapter 469, is unconstitutional and void and that this court has no power to enter judgment upon said verdict."

All motions were denied, and the defendant Leach alleged exceptions. The order allowing the exceptions was signed, "Arthur P. Stone, Justice District Court, Sitting in Superior Court."

The Berkman complaints also were tried before Stone, J., and a jury. The defendant filed a "Plea to the Jurisdiction" on the ground that Stone, J., was "not vested with any authority in law to perform the duties of a justice of the Superior Court." The plea was overruled. Material evidence at the trial is described in the opinion. At the close of the evidence, the defendant asked, among others, fcr the following rulings:

"1. On all the evidence, the defendant cannot be convicted of making a sale."

"4. On all the evidence, the alleged liquor introduced as evidence and represented to have been purchased by said Sanford, was obtained under a subterfuge and the police department, acting through Sanford, did not pay and did not intend to pay therefor, but intended and did intend to take the two dollars, given as the alleged purchase price, back into their own possession.

"5. The police department, acting through said Sanford, did not in good faith intend to purchase any liquor, or any goods, from the defendant, but through subterfuge and conspiracy intended to get, and did get the defendant's goods without consideration."

The requests were refused. The defendant was found guilty, and alleged exceptions. The order allowing the bill of exceptions was signed, "Arthur P. Stone, Justice Third District Court, Eastern Middlesex."

The Tarter case was tried before Mahoney, J., and a jury, and the defendant was found guilty. The defendant moved for an arrest of judgment on the following two grounds:

"1. This court has no jurisdiction to impose sentence upon him for that he appealed from a judgment of the Third District Court of Eastern Middlesex to the Superior Court. That the Superior Court is a court of justice established by law held by justices of the Superior Court who are duly appointed and qualified under standing laws as justices of said court, holding office for life; that the session of the court at which this defendant was tried was not presided over by a justice of the Superior Court, but by a justice of the District Court; wherefore, this court has no jurisdiction to sentence him.

"2. This court has no jurisdiction to impose sentence for that this defendant has not been tried and convicted in the Superior Court."

The motion was denied, and the defendant alleged exceptions, the order allowing which was signed, "Jeremiah J. Mahoney, Presiding Justice."

H. Bergson, for Leach. J. J. Gaffney, for Berkman.

C. W. Rowley, for Tarter.

H. P. Fielding, Assistant District Attorney for Suffolk District, (T.

C. O'Brien, District Attorney, with him,) for the Commonwealth in the first two cases.

W. L. Bishop, Assistant District Attorney of the Northern District, for the Commonwealth in the third case.

RUGG, C.J. The chief question...