Commonwealth v. Eaton , 32 Mass. 273 ( 1834 )

Wilde J.

delivered the opinion of the Court. The defendant is charged with unlawfully offering for sale, and actually selling one half of a lottery ticket, in violation of the statute in relation to lotteries. The defendant demurs to the indictment on the ground of duplicity.

It is true, that the general rule is, that the charge in an indictment must not be double. The defendant cannot be charged in one count with two distinct offences. And Archbold says, that the only exception to the rule is the charge of burglary, in which it is usual to charge the defendant with breaking and entering with an intent to commit a felony, and also with havmg committed a felony. If this' were so, and hitherto no other exception to the rule had been allowed, it would not follow, that no other exception is to be allowed. For if this case falls within the reason of the exception, as we think it does, it ought to be governed rather by the exception than by the general rule.

But the defendant is not charged with two distinct offences. On conviction he wi'I be only liable to one penalty. It is not like the case of Commonwealth v. Symonds, 2 Mass. R. 163 ; for in that case, two distinct offences were charged, for which distinct and different fines were provided.

It is true, that an offer to sell, without selling, a ticket, is an offence by the statute ; but an offer to sell and actually selling is but one offence. A sale, ex vi termini, includes an offer to sell. In Rex v. Benfield, 2 Burr. 980, the defendants were charged with singing and publishing divers scandalous, obscene and libellous songs ; and the court held there was but one offence charged, although the publishing of any one of the libellous songs would be an offence ; but several being published at the same time constituted but one offence. And they overruled the case of Rex v. Clendon, 2 Ld. Raym. 1572, in which it was decided, that a charge for a battery of two or more persons was double, and not allowable in a single count. And there are other cases, similar in principle to the present case, which fully support this indictment. In informations and indictments for libels, the defendant may be charged in one count, with writing, publishing and causing to be published, a libel. Rex v. Horne, Cowp. 672.

So, an assault and battery, committed at the same time, is considered but as one offence, and may be so charged, yet an assault, not followed by a battery, is an offence • but if so followed, the assault is merged in the battery. “ Every battery,” says Hawkins, “includes an assault; therefore on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient.” 1 Hawk. P. C. c. 62, § 1. So, every sale includes an offer to sell, and in principle the cases cannot be distinguished.

Indictment adjudged good