Commonwealth v. Martin

• Decision Date: 28 November 1939
• Citation: 23 N.E.2d 876,304 Mass. 320
• Parties: COMMONWEALTH v. MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 320

23 N.E.2d 876

COMMONWEALTH

v.MARTIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1939.

Exceptions from Superior Court, Suffolk County; Buttrick, Judge.

Anna Martin was convicted for the maintenance of a nuisance in keeping a tenement used for prostitution, assignation, and lewdness, and for knowingly permitting a female to be upon certain premises in the control of the defendant for the purpose of unlawfully having sexual intercourse, and the defendant brings exceptions.

Exceptions overruled.A. F. Iovinio, Asst. Dist. Atty., of Boston, for the commonwealth.

C. W. Rowley and W. Rowley, both of Boston, for defendant.

RONAN, Justice.

The defendant was convicted upon two complaints, one charging a violation of G.L.(Ter.Ed.) c. 139, § 4, by the maintenance of a nuisance in keeping a tenement used for prostitution, assignation and lewdness, and the second with a violation of G.L.(Ter.Ed.) c. 272, § 6, by knowingly permitting a female to be upon certain premises in the control of the defendant for the purpose of unlawfully having sexual intercourse.

In answer to a motion for a bill of particulars in the first case the Commonwealth furnished the defendant with the address of the premises mentioned in the complaint and the name of the person alleged to have committed acts of prostitution, and specified that unlawful sexual intercourse took place in the defendant's tenement. It declined to furnish the name of every person committing an act of lewdness and very act of lewdness or assignation intended to be charged. In the second case, the Commonwealth specified the address of the premises, the name of the woman alleged to be permitted to remain upon them, and that unlawful sexual intercourse was intended to be charged to this woman. The Commonwealth refused to specify the acts by which the female was induced to resort to the premises or the identity of the person with whom she resorted to the said premises. The judge was right in refusing to require the Commonwealth to file further particulars. One who is charged in the words of the statute with maintaining a nuisance by keeping a disorderly house and is furnished with the location of the place used for the alleged nuisance, the nature of the acts that occurred in the place, and the name of the person committing such acts, has been fully, clearly and substantially informed of the nature of the offence charged. It is the use of the premises that is condemned by the statute, and whether the names of those participating in such use and their specific contribution to the use made of the premises should be furnished to the defendant were matters for the sound discretion of the trial judge. In the cases at bar there was no error in the action of the judge in regard to the bills of particulars. Commonwealth v. King, 202 Mass. 379, 88 N.E. 454;Commonwealth v. Cline, 213 Mass. 225, 100 N.E. 358;Commonwealth v. Anderson, 245 Mass. 177, 139 N.E. 436;Commonwealth v. Mercier, 257 Mass. 353, 153 N.E. 834;Commonwealth v. Randall, 260 Mass. 303, 157 N.E. 354;Commonwealth v. St. John, 261 Mass. 510, 159 N.E. 599;Commonwealth v. Lombardo, 271 Mass. 41, 170 N.E. 813.

It should be noted that the Commonwealth at the trial of the second complaint did not contend that the woman named in the specifications was induced to enter the defendant's premises or that she resorted thereto for immoral purposes, and the failure to furnish particulars as to the inducement or the identity of persons who resorted with her to the premises was of no materiality. The complaint alleged that the defendant ‘did induce and knowingly suffer a female to resort to and be in and upon a certain place’ for a designated, unlawful purpose. The complaint charged a single offence which could be sustained by proving that the woman was induced and knowingly permitted to resort to and to remain upon the premises for the designated purpose. The offence charged could also be sustained by proving that the defendant knowingly suffered the woman to be upon the premises for the prescribed purpose. Where the statute disjunctively prescribes several acts in a series of acts, all of which are alleged in the complaint, then the Commonwealth may prove the violation of the statute by proof of the performance by the defendant of any one of the said acts. Commonwealth v. Dolan, 121 Mass. 374;Commonwealth v. St. Pierre, 175 Mass. 48, 55 N.E. 482;Commonwealth v. Ahern, 228 Mass. 547, 117 N.E. 827. In such circumstances the Commonwealth had the choice of proving that the defendant violated the statute in all or in only one of the ways alleged and the defendant could not be prejudiced if the Commonwealth limited its proof to a single method. If the district attorney had not entered a nolle prosequi the defendant would have been entitled at the close of the evidence to an instruction that there was no evidence to show that the defendant had induced the woman to resort to her premises for the illegal purpose. Commonwealth v. Barney, 258 Mass. 609, 155 N.E. 600. If the remaining portions of the complaint contained all the elements essential to set forth the offence charged, then the allegations that were not proved could be properly regarded as surplusage. Commonwealth v. Snow, 269 Mass. 598, 169 N.E. 542, 68 A.L.R. 920;Commonwealth v. Jaffas, 284 Mass. 417, 188 N.E. 263. The action of the prosecuting officer did not destroy the identity of the offence charged, and he could prove the offence by showing that the defendant violated the statute in one of the ways alleged. Commonwealth v. Holmes, 119 Mass. 195.Commonwealth v. Uhrig, 167 Mass. 420, 45 N.E. 1047; see Commonwealth v. Tuck, 20 Pick. 356;Commonwealth v. Dunster, 145 Mass. 101, 13 N.E. 350;Commonwealth v. Wakelin, 230 Mass. 567, 120 N.E. 209;Miller v. United States, 9 Cir., 47 F.2d 120;People v. Cohen, 307 Ill. 87, 138 N.E. 294;Ex parte McGrane, for writ of habeas corpus, 47 R.I. 106, 130 A. 804;Doupe v. State, 130 Texas Cr.R. 390, 94 S.W.2d 1164.

The defendant excepted to the exclusion of evidence tending to show that the defendant's premises were ‘well kept up’; that the witnesses who lived in other apartments in the same house with the defendant were not annoyed and heard nothing to indicate any improper conduct in the defendant's apartment. The defendant was not charged with maintaining a nuisance at common law and the evidence was not of sufficient probative value...