Commonwealth v. Reilly

• Decision Date: 25 February 1924
• Citation: 248 Mass. 1
• Parties: COMMONWEALTH v. LINCOLN L. REILLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 1

COMMONWEALTH v. LINCOLN L. REILLY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1924

January 10, 1924.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & WAIT, JJ.

Untrue and Misleading Advertisement. Pleading, Criminal, Indictment. Constitutional Law, Due process of law, Police power, Equal protection of laws. Evidence, Competency; Opinion: expert. Witness, Expert.

An indictment charging a violation of G.L.c. 266, Section 91, by the publication of advertisements containing assertions representations and statements of fact which were untrue deceptive and misleading and which the defendant knew or might on reasonable investigation have ascertained to be untrue, deceptive and misleading, is not open to objection as matter of form if it follows the terms of the statute.

Section 91 of G.L.c. 266, in its requirement that one element of the crime therein charged shall be that the accused person "knew or might on reasonable investigation have ascertained" that assertions contained in the advertisement published by him as described in the section are

"untrue deceptive or misleading," does not violate the requirements of art. 12 of the Declaration of Rights by not fixing an ascertainable standard of guilt, or by failing to convey to the person accused a defined measure of conduct, or by failure to forbid a specific act, or by being so broad as to be vague and uncertain. Section 91 of G.L.c. 266 is a valid exercise of the police power by the

General Court and is not a violation of the Constitution of the Commonwealth or of the Constitution of the United States.

Certain rulings by a judge presiding at the trial of an indictment for a violation of G.L.c. 266, Section 91, adjudging a chemical expert to be a competent witness relating to a substance which was the subject of the alleged wrongful advertisements, and admitting in evidence certain questions asked of such witness, were held, not to have violated the discretionary power of the court; and the testimony of the expert was held, not to be open to the objection that he attempted to pass upon the truth of other evidence or to base his conclusions on unstated inferences from other evidence.

INDICTMENT in eleven counts, found and returned on December 17, 1921, charging the defendant in language conforming to G.L.c. 266, Section 91, with the publication of false and misleading advertisements respecting an article called Fam-O.

On motion by the defendant, the Commonwealth filed a bill of particulars specifying assertions, representations and statements of fact made by the defendant which it relied upon as being untrue, deceptive and misleading.

The indictment was tried before O'Connell, J. Material evidence and exceptions by the defendant are described in the opinion. The defendant was found guilty on eight counts, and alleged exceptions.

The defendant was sentenced to pay a fine of $200, and execution of the sentence was suspended until further order of the court.

L. Marks, for the defendant. M. Caro, Assistant District Attorney for the Commonwealth, submitted a brief.

RUGG, C.J. This indictment charges that the defendant, at divers times set forth in several counts, published in certain newspapers, respecting an article called Fam-O, advertisements containing assertions, representations and statements of fact which were untrue, deceptive and misleading, and which the defendant knew and might on reasonable investigation have ascertained to be untrue, deceptive and misleading. The indictment is based on G.L.c. 266, Section 91. That section is in these words: "Any person who, with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, directly or indirectly, to the public for sale or distribution, or who, with intent to increase the consumption of or demand for such merchandise, securities, service or other thing, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated or placed before the public within the Commonwealth, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or in any other way an advertisement of any sort regarding merchandise, securities, service or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, and which such person knew, or might on reasonable investigation have ascertained to be untrue, deceptive or misleading, shall be punished by a fine of not less than ten dollars nor more than five hundred dollars; . . . ." with a proviso not here material.

The indictment follows the terms of G.L.c. 266, Section 91. Therefore, as matter of criminal pleading it is not open to objection. Commonwealth v. Pentz, 247 Mass. 500 .

The defendant contends that the statute itself is unconstitutional because it fails to conform to the requirements of art. 12 of the Declaration of Rights of the Constitution of this Commonwealth. That article provides that "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him. . . . And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." It is urged that the statute involved in the case at bar does not fix an ascertainable standard of guilt, that it conveys to persons accused of its violation no defined measure of conduct, that it does not forbid any specific act, and that it is so broad as to be vague and uncertain. Article 12 of the Declaration of Rights is an important safeguard of individual liberty. All statutes must conform to its requirements. Crimes can be created only by specification to a reasonable degree of definiteness of conduct forbidden or enjoined. Acts to be done or avoided must be stated with clarity. A guide or rule in the description of conduct must be established capable of being understood by the ordinary member of society. The duty of the individual must be set out with such explicit definition that the law abiding may avoid prosecution and find protection. Commonwealth v. Badger 243 Mass. 137 . Commonwealth v. Pentz, 247 Mass. 500 . Commonwealth v. Atlas, 244 Mass. 78 , 82.

The chief attack on the statute is directed against that part which authorizes a verdict of guilty for publishing as an advertisement in a newspaper an untrue, deceptive or misleading assertion, representation or statement, whose untrue, deceptive or misleading nature "might on reasonable investigation" have been ascertained. It is argued that "reasonable investigation" is not a definite standard of conduct, but varies so much with the idiosyncrasies of each individual that it is vague and uncertain.

The common law has established many tests for separating criminal from noncriminal conduct based on what a jury may think is reasonable. Self-defence as a justification in cases of homicide is made out by proof that the defendant had reasonable cause to believe, and in truth did believe, that it was necessary to strike in order to protect his own person, and that the mortal blow was given solely for that purpose. Commonwealth v. Woodward, 102 Mass. 155 161. Commonwealth v. Crowley, 165 Mass. 569, 570. In Commonwealth v. Presby, 14 Gray, 65, a police officer was indicted for assault and battery. The defence was that the alleged crime was committed in arresting one for being intoxicated on a public street in the night time under the mandate of a statute. It was held that the defence was made out by proof that the defendant, acting in good faith, had "reasonable cause" to believe that the person arrested was intoxicated even though not intoxicated in fact. The dividing line between guilt and innocence in the criminal law is whether a jury are satisfied beyond a "reasonable doubt" that the defendant committed the crime charged. Commonwealth v. Webster, 5 Cush. 295, 319, 320. A large number of statutory crimes are made to depend for one essential element upon conduct described as reasonable or unreasonable. See, for example, "without reasonable care," G.L.c. 266, Sections 8, 9, with or without "reasonable cause," G.L.c. 269, Section 13; c. 272, Sections 5, 88, unreasonable neglect or without making reasonable provision, G.L.c. 273, Sections 1, 20, Commonwealth v. Burlington, 136 Mass. 435, Commonwealth v. Ham, 156 Mass. 485 , Commonwealth v. Graham, 157 Mass. 13, Commonwealth v. Simmons, 165 Mass. 356 , Commonwealth v. Shaman, 223 Mass. 62 , refusal to contribute reasonably, G.L.c. 273, Section 15, Commonwealth v. Callaghan, 223 Mass. 150 , certiorari denied, Callaghan v. Massachusetts, 241 U.S. 667, Commonwealth v. Rosenblatt, 219 Mass. 197 . See Commonwealth v. Cassidy, 209 Mass. 24 . In all the decisions just cited it was assumed without discussion that the statute was valid and convictions were upheld. These statutes are illustrative and are not intended to be an exhaustive collection. "Reasonable cause to know" has been an essential element for conviction in some aspects of our laws against the sale of intoxicating liquor, and has been explained in our decisions. Commonwealth v. Joslin, 158 Mass. 482 , 494. Commonwealth v. Gould, 158 Mass. 499 , 508. An indictment charging a conspiracy to establish a monopoly and to enhance unreasonably the price...