Commonwealth v. Malloy

• Decision Date: 04 January 1876
• Parties: Commonwealth v. George T. Malloy
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 347

Commonwealth v. George T. Malloy

Supreme Court of Massachusetts

January 4, 1876

Argued November 22, 1875

Suffolk. Complaint by Benjamin H. Hunt, police officer, to the Municipal Court, of the South Boston district in the city of Boston, alleging that the defendant on August 23, 1875, at Boston, "and within the judicial district of said court with force and arms, did forcibly rescue and take out of the lawful custody of said complainant, the body of one Curren he the said Curren being then and there a prisoner arrested by and held in the lawful custody of said complainant, upon the charge of a certain offence, to wit: the crime of drunkenness, and being a disturber of the peace, he, the said complainant, being then and there a police officer of said city, and being then and there duly authorized to arrest and hold in custody the said Curren upon the charge aforesaid, against the peace of said Commonwealth, and the form of the statute in such case made and provided."

The defendant was adjudged guilty, and appealed to the Superior Court; and a duly authenticated copy of the complaint, the conviction, and of the other proceedings in the case were transmitted to that court. The record recited that the defendant was brought before the court on the complaint of Benjamin H. Hunt, police officer, setting forth that he the said Malloy, on August 23, 1875, at Boston, "and within the judicial district of said court, with force and arms, did forcibly rescue out of the lawful custody of said complainant the body of one Curren, then legally held by said complainant, a police officer, for drunkenness, and being a disturber of the peace, against the peace of said Commonwealth, and the form of the statute in such case made and provided." The rest of the record is immaterial to the point decided.

In the Superior Court, before the jury were empaneled, the defendant filed a motion to dismiss and quash the complaint and proceedings under the same, for the following reasons:

"1. There is no offence at law set forth in said complaint.

"2. There is no copy of the conviction of the defendant upon any offence in which the Municipal Court of the South Boston District could have had jurisdiction.

"3. The papers, as transmitted to this court, are irregular and defective. The description in the copy of the complaint on file in this case differs materially and substantially from the description of the offence recited in the copy of the judgment transmitted to this court.

"4. The provisions of the General Statutes in relation to the transfer of papers from lower courts on appeal have not been complied with."

Bacon, J., overruled the motion. The defendant was then tried and found guilty, and alleged exceptions.

Exceptions overruled.

J. W. Fox, for the defendant.

C. R. Train, Attorney General, for the Commonwealth.

Morton, J. Colt, J., absent.

OPINION

Morton, J.

The Municipal Court transmitted to the Superior Court duly authenticated copies of the complaint, conviction and other proceedings in the case, in compliance with the Gen. Sts c. 173, § 3. The objection, that the descriptions of the offence charged differ in the complaint and in the record of the...