Commonwealth v. Micheli
| Decision Date | 04 January 1927 |
| Citation | 258 Mass. 89,154 N.E. 586 |
| Parties | COMMONWEALTH v. MICHELI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report and Appeal from Superior Criminal Court, Suffolk County.
Alfredo Micheli was charged with neglecting to support an illegitimate child. On report after verdict of guilty, and on appeal by defendant from an order revoking decree of adoption of such child. Appeal dismissed, and exceptions overruled.
Crime of neglecting to support an illegitimate child is not identical with the offense of begetting the same child, though acquittal of crime of begetting would bar a prosecution for neglecting to support.
Order of court dismissing a criminal complaint is not a finding that defendant is either guilty or not guilty, and is no bar to a trial for the same offense charged in the complaint dismissed.
Dismissal of a criminal complaint, made without defendant's consent, after witnesses have been heard, will support a plea of former acquittal, though dismissal at defendant's request, or with his consent, or for his benefit does not bar second trial.
Dismissal with defendant's consent of complaint charging him with begetting an illegitimate child held not a bar to a subsequent prosecution for neglecting to support the same child, notwithstanding St. 1922, c. 432.
If a complaint charges an offense covering a period of time during part of which it could be properly charged, the fact that, during another part of the period, it could not be legally charged is not a defense.
In view of G. L. c. 210, s 6, on revocation of decree of adoption of illegitimate child, its natural parent's obligation to support it again arises.
7. Bastards k17 1/2-Complaint charging nonsupport of child held good though decree of adoption was revoked but seven days before expiration of alleged period of nonsupport and notwithstanding appeal therefrom (G. L. c. 215, s 22).
Complaint charging neglect to support illegitimate child held sufficient to charge an offense, though decree by which others adopted such child was revoked but seven days before expiration of period during which nonsupport was charged, nor was defendant's appeal from order revoking decree of adoption sufficient, under G. L. c. 215, s 22, to stay its effect during such seven days.
E. J. Harrigan, Asst. Dist. Atty., of Boston, for the commonwealth.
W. M. Blatt, of Boston, for defendant.
To a complaint charging the defendant with neglecting to support an illegitimate child from July 22, 1924, to January 22, 1925, he pleaded in bar an acquittal in the municipal court of the city of Boston on a complaint, made before the child was born, charging him with begetting the same child. When that case came on for hearing it appeared that the mother had married one Giosi before the birth of the child, and that the child had thereafter been adopted as their own by a decree of the probate court dated April 24, 1924. The case was thereupon dismissed for want of prosecution with the consent of all parties, including the defendant, and a certificate made to that effect and incorporated in the record. It does not appear that the court made any certificate that adequate provision had been made for the support of the child. See G. L. c. 273, § 17. On January 15, 1925, the decree of adoption was revoked on petition of Giosi, and the defendant appealed from the order of revocation on January 28, 1925. The district attorney demurred to the plea of the defendant. The court sustained the demurrer and the defendant appealed from that order. The case then came on for hearing on the merits. The defendant requested the trial judge to rule that he was entitled to a verdict of not guilty on the grounds (1) that the record showed a previous acquittal of the same offense; and (2) that the complaint alleged neglect of the child from July 22, 1924, whereas the child was adopted prior to that date and remained an adopted child until the revocation seven days before the complaint in the present case was made. The requests were refused and the defendant excepted. After a verdict of guilty was returned, the trial judge reported the case for the determination of the questions raised by the plea and the requests.
[1][2][3][4] The crime of neglecting to support an illegitimate child is not identical with the offense of begetting the same child, but it is assumed that an acquittal of the crime of begetting would be a bar to a prosecution for neglecting to support the same person as an illegitimate child. An order of court dismissing a criminal complaint is not a finding that the defendant is either guilty or not guilty. Dismissing a complaint without a trial on the merits is no bar to a trial for the same offense charged in the complaint dismissed. Commonwealth v. Anderson, 220 Mass. 142, 107 N. E. 523;Commonwealth v. Bressant, 126 Mass. 246. The record shows that the court did not actually decide the issue of the defendant's guilt, and the question is whether the defendant is justified in contending that, because the complaint was dismissed after some evidence was heard, the dismissal is in legal effect an acquittal. If the dismissal had been entered...
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...by demurrer. Commonwealth v. Baldwin, 213 Mass. 238, 100 N.E. 358;Commonwealth v. Rice, 216 Mass. 480, 104 N.E. 347;Commonwealth v. Micheli, 258 Mass. 89, 91, 154 N.E. 586;Commonwealth v. Crecorian, 264 Mass. 94, 96, 162 N.E. 7. Failure to demur is not fatal to a decision upon the plea. The......
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