Commonwealth v. Edwards , 70 Mass. 1 ( 1855 )

Dewey, J.

1. This defendant had no particular interest in knowing who were sworn as witnesses' before the grand jury, other than those who were thus sworn in his particular case. In capital cases, a list of the witnesses sworn before the grand jury in the particular case, is, under our practice, always furnished the prisoner. But we are not aware of any right to demand such list of witnesses in any other than a capital case.

Nor is it any objection that can be taken by the defendant, that there was an omission to comply with the provisions of the Rev. Sts. c. 136, § 9, requiring the foreman of the grand jury to return to the court a list, under his hand, of all witnesses who shall have been sworn before the grand jury during the term. Such provision is directory merely, and the omission to return such list, in the manner required by the statute, does not furnish any ground for quashing an indictment found and returned into court at the term when such omission occurred.

2. It is then insisted that this indictment is bad, because it does not appear that it was found and returned by the grand jury of the county of Hampshire. It is said that the name of the county is only alleged in the caption, and that the caption is no part of an indictment. In answer to this it may be replied, that in our practice every indictment has a caption attached to it, and returned by the grand jury as a part of their presentment in each particular case; and in this respect a caption, as used in this commonwealth, differs essentially from that of other tribunals where the separate indictments are returned without any caption, and the caption is added by the clerk of the court, as a general caption embracing all the indictments found at the term. We are of opinion, that, under our practice, it is sufficient that, in the caption returned by the grand jury in the particular case, or by reference thereto, they describe themselves as grand jurors for the county of Hampshire; and also that such indictment is in good and proper form where the grand jury are described, as in our ancient practice, as “jurors for the Commonwealth,” and that it is not necessary that they be directly described as “ grand jurors.” No other jurors than grand jurors being authorized by law to find and return bills of indictment, this indictment, under this long established form of description, must be taken to have been found by the grand jury.

3. The name of the county being fully set forth in the caption thus returned as attached to the indictment, a reference thereto in the indictment, as “ in said county,” may properly be had, to find the county where the offence is alleged to have been committed ; and being thus made certain, the place of the commission of the offence is sufficiently charged.

4. This indictment properly charges, in general terms, that the party was a common seller of intoxicating liquors, and in such case it is not necessary to set forth in the indictment any particular acts of sale, or any number of sales.

5. It is further contended that this indictment cannot be sustained, because it was found after the St. of 1852, c. 322, was repealed. If such repeal had taken place without any sufficient saving clause as to liabilities previously incurred, the position taken by the defendant would be entirely sound. But we think the true construction of the saving clause in St. 1855, c. 215, § 39, is much broader than that contended for by the defendant; and that it is a saving of all prosecutions that may hereafter be commenced, for any liabilities incurred before the repealing act took effect, by virtue of any laws existing at the time the offence was committed, and that the saving clause is not limited to prosecutions actually commenced before the St. of 1855, c. 215, took effect, but embraces all cases of liability for offences against the provisions of St. 1852, c. 322, during its continuance in force as a law, which was up to the period when the St. of 1855, c. 215, went into operation.

Exceptions overruled.