Commonwealth v. Peretz

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: SHELDON
• Citation: 212 Mass. 253,98 N.E. 1054
• Decision Date: 04 June 1912
• Parties: COMMONWEALTH v. PERETZ.

212 Mass. 253
98 N.E. 1054

COMMONWEALTH
v.
PERETZ.

Supreme Judicial Court of Massachusetts, Suffolk.

June 4, 1912.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Max Peretz was convicted of deriving support and maintenance from the earnings of a prostitute, and he excepts. Exceptions overruled.

The indictment charged that defendant, ‘during the three months next preceding the finding of the indictment, well knowing one Freida Peretz to be a prostitute, did derive support and maintenance in part from the earnings and proceeds of said Freida Peretz as such prostitute.’

[212 Mass. 253]A. C. Webber, Asst. Dist. Atty., for the Commonwealth.

Wm. R. Scharton and John F. Barry, for defendant.

SHELDON, J.

[1][2] The first and most serious objection to the validity of this indictment is that it charges the offense to have been committed[212 Mass. 254]‘during the three months next preceding the finding of this indictment.’ This is a proper mode of averment, and would authorize a conviction upon proof that the crime charged had been committed during the period of time thus defined. R. L. c. 218, § 32. But the indictment was found on the first Monday of August, that is, on August 6, of the year 1910. The acts charged did not constitute an offense at common law, but were made criminal by St. 1910, c. 424, § 5, which was approved on April 22, and so did not go into effect until May 22, 1910. R. L. c. 8, § 1. The defendant is charged with having committed the alleged

[98 N.E. 1055]

acts during the time between May 6 and August 6, 1910, but his acts were not criminal until May 22 of that year. He contends that this allegation of time is a material averment, descriptive of the offense and fixing its identity, and therefore that the indictment is fatally defective in a substantive averment as to an essential ingredient of the offense charged. Com. v. Pray, 13 Pick. 359;Com. v. Elwell, 1 Gray, 463;Com v. Adams, 4 Gray, 27. And see State v. O'Donnell, 81 Me. 271, 17 Atl. 66;Collins v. State, 58 Ind. 5;Collins v. State, 5 Tex. App. 37;Brewer v. State, 5 Tex. App. 248.

[3] He relies also upon the well-settled principle that an acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to another prosecution for a like offense during another specified time which includes any part of the time named in the first charge. Com. v. Robinson, 126 Mass. 259, 30 Am. Rep. 674, and cases cited; Com. v. Dunster, 145 Mass. 101, 13 N. E. 350;Com. v. Goulet, 160 Mass. 276, 35 N. E. 780.

[4] We do not doubt that the offense here charged may be continuous in its nature, although it may be that it could be committed also by a single act of deriving one's support in part from the prohibited source. Com. v. Pray, 13 Pick. 359, 362;Wells v. Com., 12 Gray. 326; King v. Dixon, 10 Mod. 335. So far as an offense is charged, it is accordingly one continuous offense, constituted both by a series of acts and by a duration of time; and when the time and the acts are properly proved, the offense is single and indivisible. Com. v. Robinson, ubi supra. Perhaps it may be that before the passage of St. 1899, c. 409, now contained in R. L. c. 218, the question here presented would have admitted only of an answer favorable to the defendant's [212 Mass. 255]contention.

[5] But the defect claimed to exist in the indictment is not that it does not fully set forth a criminal offense, but that it charges too much. The defendant is none the less charged with guilt during the period after May 22, that he is charged also with having done the acts stated before that day, when they did not constitute a crime. And it is provided by the statute to which we have referred that ‘no indictment shall be quashed or considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars as provided in section 39.’...