Commonwealth v. Wright

Citation158 Mass. 149,33 N.E. 82
PartiesCOMMONWEALTH v. WRIGHT et al.
Decision Date23 January 1893
CourtUnited States State Supreme Judicial Court of Massachusetts

158 Mass. 149
33 N.E. 82

COMMONWEALTH
v.
WRIGHT et al.

Supreme Judicial Court of Massachusetts, Dukes County.

Jan. 23, 1893.


Exceptions from superior court, Dukes county.

John D. Wright and another were convicted of an assault and battery, and bring exceptions. Exceptions sustained.


[158 Mass. 159]G.C. Travis, Asst. Atty. Gen., for the Commonwealth.

Cummings & Higginson, for defendants.


[158 Mass. 150]FIELD, C.J.

This is an indictment for an assault and battery. In the first count the defendants are charged with an assault and battery upon William H. Proctor, and in the second with an assault and battery upon Peter Nelson. We infer that the defendants were found guilty upon both counts, although this does not appear in the papers before us. The exceptions recite that “at the trial it was claimed by the defendants, and admitted by the commonwealth, (subject to all objections as to the competency of the evidence,) that the defendants were brought from Newport, in the state of Rhode Island, where they resided, to Edgartown, in said Dukes county, upon the requisition of the governor of Massachusetts upon the governor of Rhode Island, wherein they were charged with assault with intent to kill upon the said Proctor and Nelson. The defendants claimed, and asked the court to rule, that they could not be tried upon the present indictment, but only for the offense for which they were extradited, and that they should be discharged. The court declined so to rule, and to discharge the defendants, and ruled that the offer of proof was incompetent in bar of the prosecution of the defendants. The defendants objected and excepted to the above ruling and refusal to rule.” The copy of the complaint before the trial justice which has been sent to us, and on which the defendants were bound over for trial by the superior court contains one count only; and it is for an assault with dangerous weapons upon William H. Proctor, with intent to kill and murder him, he being then a member of the district police, engaged in the execution of the duties of his office, as the defendants knew. There is no charge of an assault of any kind upon Nelson. We suppose that this is the complaint on which the requisition was founded, although the exceptions [158 Mass. 151]recite that the assault described in the requisition was with intent to kill “said Proctor and Nelson.” We have not been furnished with a copy of the requisition. An assault with a dangerous weapon, with intent to murder, is punishable “by imprisonment in the state prison, not exceeding twenty years.” Pub.St. c. 202, § 23. It is therefore a felony. Id. c. 210, § 1. A simple assault and battery is a misdemeanor. Upon an indictment for an assault with intent to murder, a defendant can be convicted of a simple assault; and it is conceded in this case that both the indictment and the complaint were supported by the same evidence, and were intended to include the same acts of the defendants. If the complaint, however, contained no charge of an assault upon Nelson, then the defendants have been tried for an assault not included in the complaint. The contention of the defendants is that they could not be tried for any

[33 N.E. 83]

other crime, committed before they were surrendered, than that for which they were demanded, according to the decision in U.S. v. Rauscher, 119 U.S. 407,7 Sup.Ct.Rep. 234, as no opportunity was afforded them to return to Rhode Island after they were delivered up on the requisition, except on their recognizance to appear in the superior court and to abide the order and sentence of that court. The contention is that the law is the same in extradition between the states of the United States as between the United States and foreign nations. The first contention of the attorney general is that, by proceeding to trial upon a plea of not guilty, the defendants have waived any such defense. It is true that, if the defendants were entitled to be discharged from arrest upon the indictment under the rule of U.S. v. Rauscher, this is not strictly a defense to the indictment. An indictment could properly have been found against the defendants while they were in the state of Rhode Island, and they could properly be tried on this indictment at any time when they could be lawfully arrested, and held to answer to it. They might voluntarily come within this commonwealth, and be arrested here, or be brought here for trial by a requisition for the identical crime charged in the indictment. The defendants could not be entitled to a verdict and judgment of not guilty on this indictment because they had been unlawfully held in arrest to answer to it, and thus be thereafter free from any prosecution for the offense by pleading [158 Mass. 152]this judgment in bar of another prosecution. If the facts and the law are as the defendants contend, they were entitled to be discharged from custody until they had had a reasonable opportunity to return to Rhode Island. This question, we think, could properly have been raised by a motion or petition...

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