Commonwealth v. Quin , 71 Mass. 478 ( 1855 )

Metcalf, J.

1. The question, why the witness had changed his name, was immaterial, and for that reason, if for no other, the judge rightly ruled that it should not be put.

2. The other questions were improperly put to the witness. They involved the fact of a previous conviction, or previous convictions, which could be proved only by record. 1 Greenl. Ev. § 407.

3. The alleged defect in the complaint, by reason whereof it is contended that it does not show that the offence complained of was committed within the Commonwealth, is the omission in the margin, of the words “ Commonwealth of Massachusetts • Essex, ss.” This is not a cause for arresting judgment. The purpose of a venue, in the margin of an indictment, is to designate the county in which the party accused is to be tried; and that, by the common law, always was the county in which the offence was committed. See 2 Gabbett Crim. Law, 202, 209 8f seq.; 1 Stark. Crim. PI. c. 13. But we do not understand that it ever was necessary to insert the county in the margin if it was inserted in the body of the caption. Lord Hale says, and it is so stated in many books, that “ the name of the county must be in the margin of the record, or repeated in the body of the caption.” 2 Hale P. C. 165. It is usual to name the county in the margin; and if, in the body of the caption, the county is not named, but is termed “ the county aforesaid,” it will be taken to be the county named in the margin. If however a proper venue is set forth- in the caption, there can be nn reason for inserting it in the margin. See 1 Saund. 308, note (1); The Queen v. O’Connor, Dav. & Meriv. 761.

In a complaint before a justice of the peace, or police court, we believe it has never been the practice to insert the county in the margin. See D. Davis’s Justice, (3d ed.) 233 8f seq. However this may be, if the county sufficiently appear in the body of a complaint, the want of venue in the margin cannot be more material than it is in an indictment. And in this case it seems to us that the complaint sufficiently charges that the alleged offence was committed in Salem in the county of Essex in this commonwealth. It was made in behalf of the Commonwealth, and alleges an offence against a statute, the title and date of which are stated, and rightly describe a statute passed by the legislature of this commonwealth. It was made to the police court for the city of Salem in the county of Essex, and avers that the defendant, at Salem aforesaid, did sell, &c. All that would have appeared on the complaint, if the omitted words had been at the head or in the margin of it, now appears, either in its express terms or by necessary implication.

In England, by Sts. 7 & 9 G. 4, no judgment upon any indictment for any felony or misdemeanor shall be stayed or reversed for the want of a proper or perfect venue, where the court shall appear, by such indictment, to have had jurisdiction of the offence.

4, 5. The clerk of the police court in Salem certifies that the oath to the complaint was made before that court. The objections, that it does not appear that this was done within the Commonwealth, and that it does not appear that John H. New ton signed the complaint, require no answer.

Exceptions overruled.