Commonwealth v. Runge

• Decision Date: 06 January 1919
• Citation: 231 Mass. 598
• Parties: COMMONWEALTH v. HARRY L. RUNGE. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 598

COMMONWEALTH v. HARRY L. RUNGE. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1919

November 14, 1918.

Present: RUGG, C J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Physicians and Surgeons. Practice, Criminal, Continuing offence, Judge's charge: curing error. Evidence, Relevancy.

Where a complaint under R.L.c. 76, Section 8, charges the defendant with unlawfully holding himself out as a practitioner of medicine between two dates named, the complaint is for a continuing offence and the time during which the defendant is charged with having committed a series of acts is a material part of the offence described, and accordingly evidence of acts committed by the defendant before the time specified must be excluded.

The provisions of R.L.c. 218, Section 20, in regard to allegations of the time of the commission of a crime are not made applicable to continuing offences where time "is an essential element of the crime."

At the trial on a complaint under R.L.c. 76, Section 8, for practising medicine without being lawfully authorized to do so and without being registered as required by law, the judge in his charge made certain remarks in regard to the leniency that the court endeavored to exercise in imposing sentences in such cases but the judge immediately added the following instructions "But in regard to the disposition of the case, leave that all aside. That is not something concerning which you have to worry or bear the responsibility; that is upon the court. What you have to decide here is the truth. If, upon the law and the evidence in this case, there should be a verdict of guilty, say so; and if there should be a verdict of not guilty, then say that too; but come into court -- whether it be a verdict for the government or for the defendant -- with a verdict which in your consciences you believe to be a true verdict, a verdict the rendering of which you and all concerned with the case can feel satisfaction with, a verdict after the rendering of which you can look your fellows in the eye, and say, `According to my conscience, this verdict is a true verdict." Held, that if the defendant had had any right to complain of the earlier part of the judge's charge referred to above, his ground of complaint had been removed by the further instructions of the judge that immediately followed.

TWO COMPLAINTS under R.L.c. 76, Section 8, received and sworn to in the Municipal Court of the City of Boston on February 18 and August 3, 1915, the first charging the defendant with practising medicine on November 18, 1914, and on divers other days between that date and February 18, 1915, not being authorized to do so and not being registered with the board of registration in medicine of the Commonwealth according to law, and the second charging the defendant with holding himself out as a practitioner of medicine between March 3, 1915, and August 3, 1915, without being lawfully authorized to practise medicine within the Commonwealth and without being registered as required by law.

In the Superior Court the defendant was tried on both complaints before Dana, J. The material evidence is described in the opinion. The defendant made a motion upon each of the complaints that the judge should instruct the jury upon all the evidence to return a verdict of not guilty. The judge denied both of these motions, and he also refused to make certain rulings requested by the defendant. The material portion of the judge's charge is described and quoted in the opinion.

"The defendant excepted to that portion of the judge's charge upon the second complaint which instructed the jury to consider and apply evidence outside of the dates alleged in that complaint for the purpose stated by the" judge. He also "excepted to that portion of the judge's charge which referred to the manner of disposing of a case."

The jury returned a verdict of guilty on each of the complaints; and the defendant alleged exceptions.

The appeal referred to in the opinion was taken in each case by the defendant from an order of the judge denying a motion to quash the complaint.

J. F. Barry, for the defendant. A. C. Webber, Assistant District Attorney, for the Commonwealth.

LORING, J. In this case there were two complaints. The second complaint charged the defendant with having unlawfully held himself out "as a practitioner of medicine" (in violation of R.L.c. 76, Section 8), between March 3, 1915, and August 3 1915. At the trial the government did not put in evidence any such act between the dates named. But it did introduce evidence of one such act on February 21, 1914, and of another on February 12, 1915. The presiding judge instructed the jury that, if the defendant held himself out as a practitioner of medicine upon any occasion preceding the date alleged in the complaint and within a period of six years next before that date they could find the defendant guilty. To this ruling the defendant took the exceptions which are now before us.

The offence created by R.L.c. 76, Section 8, may be committed by a single act or by a series of continuous acts. That is to say, it may consist of a single offence or of a continuing offence. In the case at bar the government elected to charge the defendant with a series of acts committed between March 3 1915, and August 3, 1915, which constituted the continuing offence of illegally holding...