Commonwealth v. Robinson

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Lord, J.
• Citation: 126 Mass. 259
• Parties: Commonwealth v. John Robinson
• Decision Date: 18 January 1879

126 Mass. 259

Commonwealth
v.
John Robinson

Supreme Court of Massachusetts

January 18, 1879

Argued November 27, 1878

Exceptions sustained.

J. L. Eldridge, for the defendant.

C. R. Train, Attorney General, for the Commonwealth.

OPINION

Lord, J.

The bill of exceptions in this case presents some questions of certainly unusual, if not entirely novel character.

The complaint made to a District Court charges the defendant with keeping a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors at Braintree, on January 1, 1878, and on divers other days and times between that day and August 20, 1878.

The bill of exceptions states that "in the Superior Court, the case being called for trial, the defendant having duly filed a plea in bar alleging a former acquittal of the same offence, and issue having been joined thereon, the government demurring ore tenus, [126 Mass. 260] it appeared and was admitted that the defendant upon June 19, 1878, was acquitted upon a complaint in said District Court charging him with keeping and maintaining a tenement for the illegal sale and illegal keeping for sale of intoxicating liquors on January 1, 1878, and to May 28, 1878; that the tenement alleged in that complaint was the same as that alleged in the complaint upon trial. The court thereupon sustained the demurrer between June 1, 1878, and August 20, 1878, and the defendant duly excepted thereto."

From this record, it is difficult to understand the precise condition of the case. Literally construed, it would seem as if a demurrer to a plea was sustained in part and overruled in part. We cannot suppose that the Chief Justice presiding intended to make such ruling, but rather that he intended to rule, as matter of law, that the plea was bad as to the time between June 1, 1878, and August 20, 1878, as not covering the whole offence charged in the complaint, and, being thus bad as to a portion of the time covered by the complaint, it was wholly bad; and sustained the demurrer, intending to rule, as matter of law, that the defendant might so far avail himself of the facts stated in the plea as to preclude the government from offering proof of any facts transpiring before June 1, but to allow proof of facts subsequent to that date and prior to August 20, 1878.

Assuming this to be the true view of the facts affecting the rights of the defendant, the question is, was such ruling correct.

We are confirmed in our construction, by the fact that the defendant was directed to plead over, and all evidence of acts prior to June 1 was excluded. The real question thus presented is, whether the former acquittal is a bar to a conviction on the present complaint; and that question is to be decided by deter mining whether the offence charged in that complaint is the same offence with which he is charged in the complaint at bar. If it is the same offence, it is a bar to the present complaint; if it is not the same offence, it is neither a bar to this complaint nor is it admissible in evidence under it. An offence is in its nature indivisible. It may consist of a series of acts, but that series of acts constitutes but one offence. It may not only require a series of acts, but a duration of time, to constitute the offence; but, when the acts and the time are properly proved, [126 Mass. 261] the offence is single and indivisible. There is therefore no such thing known in law as a judgment of conviction or acquittal being a bar to part of an offence. It must be a bar to the whole, or it is of no value.

The offence charged in this complaint is that of keeping a tenement for the illegal sale of intoxicating liquors between the first day of January and the twentieth day of August, 1878. If the defendant thus kept the tenement during every hour of the time between those dates, he has committed but one offence. It is true that such offence is continuous in its character. It is not an offence committed by a single sale of intoxicating liquors, but it is that of maintaining a common resort for the purchase of intoxicating liquors which the Legislature has deemed it proper to declare to be a common nuisance. But it has been frequently held that, in order to constitute the offence, there need be no proof offered that the place was...