Commonwealth v. Butler , 83 Mass. 4 ( 1861 )

Metcalf, J.

If there is in the complaint a misnomer of the defendant, or a wrong or defective description of her, it is matter of abatement, and not a cause for arresting judgment.

Only one offence is set forth in the complaint, to wit, that of being an unauthorized common seller of intoxicating liquors on a certain day, and from that day to another certain day.

It is argued for the defendant that two offences are charged in the complaint; the first on the 1st of February, and the second on other days “ from said day to the day of making this jomplaint; ” because the word “ and ” is not inserted before the word “ from.” But we are of opinion that the mere clerical error of omitting the connective particle is unimportant, and that the charge in the complaint is not thereby in any way affected. We cannot doubt that the complaint charges a continuous selling of liquors from the first day of February 1860 to the seventeenth day of the following July, and no other offence. The sense being clear, an objection like that now taken ought not to prevail. 1 Chit. Crim. Law, 172, 173. 2 Gabbett Crim. Law, 200. Commonwealth v. Johns, 6 Gray, 274.

There is no error in the instruction to the jury. No evidence was given that the sales by the defendant were made in the presence of her husband; and there is no legal presumption that they were so made. Nor is there any legal presumption that acts done by a wife in her husband’s absence are done under his coercion or control. Indeed if she, in his absence, do a criminal act, even by his order or procurement, her coverture will be no defence. Commonwealth v. Murphy, 2 Gray, 510. 1 Hawk. c. 1, § 11. 2 East P. C. 559. Rex v. Morris, 2 Leach, (4th ed.) 1096, 1102. Hughes’s case, 2 Lewin Cr. Cas. 231.

Exceptions overruled.