Commonwealth v. St. John

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: Commonwealth v. St. John, 261 Mass. 510, 159 N.E. 599 (Mass. 1928)
• Decision Date: 05 January 1928
• Parties: COMMONWEALTH v. ST. JOHN, and six other cases.

261 Mass. 510

159 N.E. 599

COMMONWEALTH

v.ST. JOHN, and six other cases.

Supreme Judicial Court of Massachusetts, Norfolk.

Jan. 5, 1928.

Exceptions from Superior Court, Norfolk County; Gibbs, Judge.

Walter St. John, Randel Chaney, John Carbone, Patsey Deario, James Grant, and Harold Matthews were severally convicted of taking clams illegally from tidal waters and flats proscribed as contaminated, and with possessing clams so taken. Defendant St. John was also convicted of transporting clams so taken. On exceptions. Exceptions overruled.Dudley P. Ranney, Asst. Dist. Atty., of Boston, for the commonwealth.

C. W. Rowley, of Boston, for defendants.

WAIT, J.

The defendants, severally, were charged each with taking clams illegally at Quincy on February 9, 1927, from tidal waters and flats proscribed as contaminated under G. L. c. 130, § 137, and with having in his possession clams so taken. The defendant St. John was charged, in addition, with transporting clams so taken. In the superior court, on appeal, they were found guilty and sentences were imposed.

The cases are before us upon exceptions claimed to the denial by the superior court of motions for bills of particulars, to the refusal to direct verdicts of not guilty, to the admission of certain evidence, and to certain instructions given to the jury.

[1][2] The defendants were not entitled, as matter of law, to the bills of particulars. The complaints set out the offences charged, fully and with sufficient detail. No further specification was needed to enable the defendants to understand what was alleged against them, and to prepare their defence. The time, place, and manner of the taking and the persons who took the clams were not essential allegations of the complaint for transporting; and in view of the fact that St. John was charged, in another complaint made at the same time and to be tried with that for transporting, with himself taking illegally the clams which he was charged with transporting, he needed no bill of particulars to enable him to defend. The defendants were informed by the complaints that the flats from which the clams were alleged to be taken were proscribed by law. They clearly were not entitled to be informed by bill of particulars of the evidence to be relied upon to show the steps taken to create an effective proscription. Commonwealth v. King, 202 Mass. 379, 384, 88 N. E. 454.

[3] There was evidence from which the jury could find that the defendants on February 9, 1927, landed on the flats at Half Moon Island, dug there, filled sacks with what was dug, placed them upon a boat, were taken by police while coming from the flats in the boat; that the boat was St. John's and the sacks contained clams. There was also evidence which, if admissible, justified findings that the flats were within an area proscribed as contaminated in accord with law; and that the requirements of the law in regard to notice had been complied with. No evidence in contradiction was introduced. Manifestly there was evidence from which verdicts of guilty could be found.

The defendants contend that the evidence admitted to prove the proscription of the waters and flats as contaminated, and compliance with the requirements of the statutes, was incompetent, and that no sufficient evidence on these points was introduced. They also contend that certain rulings of the judge in regard to the effect of the statutes governing this subject-matter were erroneous.

The prosecutions are based upon St. 1926, c. 370, which was in force from and after May 25, 1926, G. L. c. 4, § 1. That statute, in its first section, amended G. L. c. 130, §§ 137 to 142, inclusive, by striking them out and inserting in their place, as sections 137, 138, and 139 of General Laws, chapter 130, other, though similar, provisions. It directed the department of public health to examine the tidal waters and flats in the commonwealth in order to determine what areas are so contaminated that shellfish taken therefrom are unfit for food or dangerous to the public health, and to determine and promulgate definite bounds of areas found to be so contaminated. The department was further directed to publish in a newspaper, published in the town in which or adjacent to which any contaminated area is situated, the results of its examination, and to cause to be posted at points on or near any such area a description specifying the bounds and a statement that the area contaminated. By the new section 138 of G. L. c. 130, any one who took shellfish for any purpose from an area so determined, or who transported or had in his possession shellfish so taken, was subjected to a penalty, unless he had written approval from the commissioner of public health. Section 3 of the act provided that until further action by the defendant, areas examined and determined to be contaminated under and in accord with the provisions of St. 1925, c. 300, or of G. L. c. 130, § 137, as theretofore in force, should be deemed to have been examined and determined under St. 1926, c. 370, and required posting within 60 days after May 25, 1926. No claim is made that any defendant had written approval from the commissioner.

[4] Admittedly, no examination of the area from which the defendants took clams had been made since the enactment of St. 1926, c. 370, or under St. 1925, c. 300. It was incumbent, therefore, to show examination and determination under G. L. c. 130, § 137, as theretofore in force, and compliance with the requirements for posting. The judge admitted, against the defendant's objection and exception, testimony of a witness who was a fish and game warden, that on June 21, 1926, he was one Raymond post certain posters at eight different places, which the jury could find to be in Quincy, Weymouth and Hingham, a city and town adjacent to Half Moon Island or within which the island and alleged contaminated area is situated, and a copy of the poster. Manifestly there was no error in so doing.

[5] The poster was headed: ‘The Commonwealth of Massachusetts. Department of Public Health. Taking of Shellfish Prohibited. Posted under Provisions of Acts of 1926, chapter 370.’ It stated that the department had made an examination, that as a result it had determined that the flats and waters within limits therein definitely set forth, which were the limits set out in the complaints, were ‘so contaminated that shellfish obtained therefrom are unfit for food and dangerous to the public health’; that the area so described is stated to be contaminated; ‘that by G. L. c. 130, § 138, as amended by St. 1926, c. 370, the taking of shellfish from an area such as that above described is prohibited, and that any one who took shellfish from such an area or transported or had in his possession shellfish so taken was liable to fine or imprisonment to an extent there stated, and that pursuant to G. L. c. 266, § 124, any one who willfully and maliciously or wantonly and without cause removes or defaces a paper posted in compliance with law was liable to fine to an amount stated. Such a paper spoke for itself. It needed no signature. It was as much a public proclamation as if it had issued from the lips of a herald.

While not conclusive, it was evidence of the truth of the facts which it stated. Whiton v. Albany City Insurance Co., 109 Mass. 24.

[7] The judge admitted, also, against similar exception, an advertisement which the defendants agreed was published in the Quincy Daily Ledger, a newspaper published in Quincy, and in other newspapers published in Norfolk and Suffolk counties, on November 27, 1923. There was no evidence of other or later publication. This stated, over the printed signature: ‘Department of Conservation. William A. L. Bazeley, Commissioner. Division of Fisheries and Game. William C. Adams, Director’-that on November 20, 1923, the department of public health, acting under the provisions of G. L. c. 130, § 137, requested the department of conservation, division of fisheries and game, to prohibit the taking of any oysters, clams, quahogs or scallops from the area therein described, which was the same described on the...