Commonwealth v. Taber
| Decision Date | 23 October 1877 |
| Parties | Commonwealth v. John G. Taber |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bristol. Complaint to the Third District Court of Bristol, charging the defendant with keeping intoxicating liquors with intent to sell the same, in violation of law. In the Superior Court, on appeal, before the jury were empanelled, the defendant filed a plea in bar, alleging that the complaint was received, heard and tried before Alanson Borden, esquire, who at the time of said trial was then and there mayor of the city of New Bedford, and was then and there the judge of the Third District Court of Bristol; and that, by the Constitution and laws of the Commonwealth and the ordinances of the city of New Bedford, Borden was not a proper person as judge to hear and determine the case.
The district attorney demurred to the plea, and the demurrer was sustained, and the plea adjudged. From this judgment, after being tried on the general issue, and found guilty, appealed.
Judgment affirmed.
E. L. Barney, for the defendant.
W. C. Loring, Assistant Attorney General, for the Commonwealth, was not called upon.
The competency of the magistrate, before whom this prosecution was commenced, is not objected to on account of any disqualification by reason of personal interest in the cause, as in Richardson v. Welcome, 6 Cush. 331, but upon the ground that, holding the executive office of mayor of the city of New Bedford, he could not at the same time exercise judicial power as a judge within the same territory. As, upon the allegations of the plea, he was at least a judge de facto, his jurisdiction could not be controverted upon this ground, nor the question whether the two offices were incompatible be tried, in a proceeding to which he was not a party. Milward v. Thatcher, 2 T. R. 81, 87. McGregor v. Balch, 14 Vt. 428. Coolidge v. Brigham, 1 Allen 333. Sheehan's case, 122 Mass. 445.
Judgment affirmed.
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