Commonwealth v. Moscatiello

• Decision Date: 19 October 1926
• Citation: 257 Mass. 260,153 N.E. 545
• Parties: COMMONWEALTH v. MOSCATIELLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 260

153 N.E. 545

COMMONWEALTH

v.MOSCATIELLO.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 19, 1926.

Exceptions from Superior Court, Berkshire County; L. S. Cox, Judge.

Horace Moscatiello was convicted of having control of an automobile and carrying a revolver without permission, and he excepts. Exceptions overruled.J. M. Shea, Asst. dist. Atty., of Pittsfield, for the commonwealth.

C. R. Alberti, of Pittsfield, for defendant.

CARROLL, J.

The complaint in this case, so far as material, charged that the defendant at Pittsfield, on March 3, [257 Mass. 261]1926, ‘he being the person having under his control a certain vehicle, to wit, an automobile, did carry a revolver without permission so to do in violation of chapter 284, section 10, Acts of 1925.’ In the district court no objection was made to the complaint. ‘No motion to quash was filed.’ After conviction in the district court the defendant appealed.

In the superior court the defendant moved to dismiss and quash the complaint, because (1) no crime was alleged in the complaint; (2) chapter 284, § 10, Acts of 1925, describes two crimes with reference to the carrying of revolvers, (a) carriage on the person, (b) carriage under control in a vehicle, and that neither of the above-mentioned crimes is alleged; and (3) because the complaint is not sufficient to sustain a verdict against the defendant. This motion was denied, and the defendant excepted. The defendant then moved for a bill of particulars. This motion was denied. The defendant did not except to this ruling. The district attorney then stated that he would ask for a conviction on the ground that the defendant was carrying a revolver ‘under the cushion of the rear seat of an automobile driven by the defendant.’ This statement was offered in lieu of a bill of particulars. The defendant's counsel agreed that this was satisfactory.

The evidence tended to show that the defendant was arrested while driving an automobile registered in his name, ‘for other violations of the law’; that while searching the automobile the complainant found the revolver under the back seat thereof. The bill of exceptions further recites there was additional evidence from which it could be inferred that the revolver was carried by the defendant ‘in his automobile in violation of the statute in question.’ The defendant was convicted in the superior court. He moved ‘to arrest judgment,’ because the evidence ‘does not bear out the complaint or any part thereof.’ The motion was denied and the defendant excepted.

[2] An objection to a complaint for a formal defect apparent on its face must be taken before judgment is ordered by the district court. G. L. c. 278, § 17. The defendant went to trial in the district court without objection to the complaint by demurrer or motion to quash. It was not until the case was in the superior court that he moved to dismiss the complaint. This motion came too late. Matters in abatement are waived by going to trial in the district court without objection to the complaint. Commonwealth v. Markarian, 250 Mass. 211, 213, 145 N. E. 305.

[3] The complaint refers to section 10 of chapter 284, of the Acts of 1925. This statute contains five sections. Section 5 refers to G. L. c. 269, as amended in section 10 by section 1 of chapter 248, of the Acts of 1923, by striking out section 10 and inserting in place thereof section 10 as...