Fitzgerald v. Commonwealth

• Decision Date: 18 June 1883
• Citation: 135 Mass. 266
• Parties: James Fitzgerald v. Commonwealth
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 266

James Fitzgerald v. Commonwealth

Supreme Court of Massachusetts

June 18, 1883

Suffolk. Writ of error to reverse a judgment rendered for the Commonwealth at May term 1882 of the Superior Court for the county of Suffolk, for the transaction of criminal business upon an indictment in six counts.

The first count of the indictment charged that James Fitzgerald J. F. Norton and Harry Stevens, on March 28, 1882, at Boston "with force and arms, did fraudulently obtain from one Charles Francis Adams, by means of a game, device, sleight of hand and trick, by the use of cards and other implements and instruments, a more particular description of which said game, device, sleight of hand, trick, implements instruments, and cards is to said jurors unknown, one written check and order for the payment of money to the amount and of the value of two hundred and fifty dollars, one piece of paper of the value of two hundred and fifty dollars, of the property and moneys of said Adams, against the peace of said Commonwealth and the form of the statute in such case made and provided."

The second count was the same as the first, except the description of the property obtained, which was thus set forth: "one written check and order for the payment of money to the amount and of the value of sixteen hundred dollars, one piece of paper of the value of sixteen hundred dollars, of the property, moneys, goods and chattels of said Adams."

The third count differed from the preceding only in the description of the property, which was set forth as "one written check and order for the payment of money to the amount and of the value of seventeen thousand and five hundred dollars, and one piece of paper of the value of seventeen thousand and five hundred dollars, of the property, moneys, goods and chattels of said Adams."

The fourth, fifth and sixth counts repeated respectively the allegations of the first, second and third counts, omitting the names of Norton and Stevens as principals, and charging them as accessories thereto before the fact, and also as accessories thereto after the fact.

The record set forth that the indictment was found and returned into court by the grand jury at April term 1882, when the plaintiff in error was arraigned and pleaded not guilty; that the indictment was then continued to May term 1882, when the plaintiff in error filed a motion to quash the indictment, which motion, after a hearing, was overruled; that the plaintiff in error was again arraigned, and for trial put himself upon the country, and the Commonwealth did the like by its attorney; that a jury was duly empanelled, and returned a verdict of guilty on the first, second and third counts of the indictment, and of not guilty on the other counts; that the plaintiff in error filed a motion in arrest of judgment, and also filed exceptions to the rulings of the court upon certain matters of law; that the indictment was then continued to June term 1882, when the motion was overruled, and the exceptions waived; and that the plaintiff in error was sentenced, for the offence set forth in the first, second and third counts of the indictment, to imprisonment in the state prison for the term of five years.

The assignment of errors was as follows: "First. In neither of the counts in said...