Fox v. Commonwealth

• Decision Date: 29 May 1928
• Citation: 161 N.E. 803,264 Mass. 51
• Parties: FOX v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 51

161 N.E. 803

FOX

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Bristol.

May 29, 1928.

Exceptions from Supreme Judicial Court, Bristol County; E. P. Pierce, Judge.

Max Fox was convicted under separate indictments for exposing and keeping for sale intoxicating liquors with intent to sell same, and with keeping and maintaining place for the illegal sale and for illegal keeping for sale intoxicating liquors, and for conspiracy to expose and keep for sale intoxicating liquor with intent to sell same and to transport intoxicating liquor, and he brings exceptions. Exceptions overruled.

1. Conspiracy k37-Defendant could be tried for conspiracy to do things for which he was tried under separate indictments against him as individual, charging liquor law violations.

Defendant could be tried for conspiracy to do things for which he was tried under separate indictments charging him with exposing and keeping for sale intoxicating liquors with intent to sell the same, since statutory misdemeanors were distinct offenses from crime of conspiracy, which is misdemeanor at common law.

2. Constitutional law k70(3)-Remedy where law permits punishment for conspiracy to commit crimes to exceed penalty for crimes themselves is with Legislature (G. L. c. 139, c. 279, s 5, and c. 138, as amended; St. 1923, c. 370).

Remedy where law, such as G. L. c. 279, s 5, permits punishment for conspiracy to violate statutes to exceed penalty provided for violation of statutes concerning illegal keeping for sale of intoxicating liquors, chapter 138, as amended, and chapter 139, for illegal transportation of intoxicating liquors, St. 1923, c. 370, and for maintenance of a place where intoxicating liquors are illegally kept, is with Legislature.David R. Radovsky, of Fall River, for plaintiff.

W. C. Crossley, Dist. Atty., of Fall River, and F. E. Smith, Asst. Dist. Atty., of Taunton, for the Commonwealth.

BRALEY, J.

The plaintiff was indicted and convicted on three indictments which were tried together. The second indictment charged the defendant in separate counts with exposing and keeping for sale intoxicating liquors with intent to sell the same on January 5 and January 6, 1927. The third indictment charged him with keeping and maintaining a place used by him for the illegal sale and illegal keeping for sale of intoxicating liquors. G. L. c. 138, as amended; G. L. c. 139. The plaintiff was sentenced on each indictment to pay a fine of $100 and to imprisonment for a term of six months. The first indictment in three counts charged that he entered into a conspiracy with certain persons who are named to commit the crimes charged in the second indictment, and also to transport by vehicle intoxicating liquor without having ‘obtained the permit or other authority required therefor by the laws of the United States and the regulations made thereunder.’ St. 1923, c. 370. The plaintiff having been found guilty was sentenced on this indictment to pay a fine of $500 and to imprisonment for a term of two years. The merits of these prosecutions have been determined by the...