Commonwealth v. Sanborn

• Decision Date: 28 October 1874
• Citation: 116 Mass. 61
• Parties: Commonwealth v. William Sanborn
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 61

Commonwealth v. William Sanborn

Supreme Court of Massachusetts

October 28, 1874

Bristol. Indictment on the Gen. Sts. c. 87, §§ 6 7, charging the keeping of a tenement used for the illegal sale of intoxicating liquors.

Before arraignment the defendant filed a plea in abatement, a motion to quash, and a special plea in bar, setting forth that two of the jurors upon the grand jury by which the indictment was found and presented were not charged by the presiding judge but were simply sworn by the clerk in open court. The court overruled the pleas and motion.

The defendant also filed a special plea in bar, setting forth that he had paid a special tax to the United States, for his keeping and selling spirituous and intoxicating liquors, at the same time and at the same place for which he was charged in this indictment. The court adjudged the plea bad.

At the trial in the Superior Court before Putnam, J., evidence of verbal admissions by the defendant was admitted, tending to show that he kept and maintained the tenement. At the defendant's request the judge instructed the jury that such evidence should be received with great caution. The defendant further requested the court to instruct the jury that no substantial reliance could be placed upon this class of evidence uncorroborated. This the judge refused, but did instruct them that whether any substantial reliance could be placed upon this class of testimony depended upon the circumstances of each case, and that it was for the jury to say in this case how far they could rely upon it.

The jury returned a verdict of guilty, and the defendant alleged exceptions.

Exceptions overruled.

J Brown, for the defendant. 1. At common law, the "grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench." 4 Bl. Com 303. In Wadlin's Case, 11 Mass. 142, this court deemed it essential that a grand juror, not present when the jury were empanelled and charged, should be sworn and charged separately before joining the panel. At that time the present explicit directions, by statute, in regard to charging them did not exist. St. 1807, c. 140, § 10. The Gen. Sts. c. 171, §§ 12, 13, are identical with the Rev. Sts. c. 136, §§ 12, 13, and were reported by the commissioners, who, in their note, say, "Perhaps all this may be considered as being comprised in the oath of grand jurors: but it seemed better to express it than to leave it to implication." Report of Commissioners on Rev. Sts. c. 136. It is obligatory on the court to remind the grand jury of the provisions of § 13, and the preceding sections. Gen. Sts. c. 171, § 13. The two jurors were not therefore qualified, as required by statute, to join the panel, and the indictments were found and presented by a body not duly constituted. It would have the same effect as if twelve or the whole proceeded to business without a charge or this reminder, as a majority are to agree upon a bill. An omission to properly administer the oath to a traverse jury, as required by statute, renders their verdict illegal. Johnson v. The State, 47 Ala. 9.

2. In regard to the special plea in bar, setting up that the defendant had paid a special tax to the United States, the defendant relies upon the point that the case of Pervear v. Commonwealth, 5 Wall. 475, was decided when the internal revenue law required a license instead of the payment of a special tax, as now, and that the U.S. St. of 1872, c. 315, omitted, or rather repealed by implication that clause in the former statutes which provided that "no license" should authorize the doing of acts in violation of the laws of any state or territory. No license is now granted, but a special tax is paid to carry on a trade or...