Jeffries v. Commonwealth , 94 Mass. 145 ( 1866 )

Dewey, J^*

The plaintiff in error seeks to reverse a judgment rendered against him in the superior court holden at Boston, within and for the county of Suffolk, on.the first Monday of April 1864. Various special causes of error are assigned, as well as the general allegation that “ the said record is erroneous, informal and void,” under which additional causes were stated at the hearing of the case. To these alleged errors, the attorney general by his plea in reply, says, “ There is no error in the record or proceedings, nor in the giving judgment in manner and form as the plaintiff has alleged.”

As to the first error assigned, except so much of it as is embraced in the second and third assignment of errors, it has been heretofore considered by us on the motion in arrest of judgment filed by the plaintiff in error, before sentence, and the objection overruled.

The second and third grounds of error assigned may properly be considered together, and are, substantially, that in the indictment there is no averment that the acts therein alleged were done and committed at any place within the jurisdiction of said superior court, or at any place within the Commonwealth, and the place where the acts therein alleged were done is omitted to be stated, as is required by the rules of criminal pleading.

The principle of law upon which the counsel for the plaintiff in error would support this objection is well stated by them, “ that every material fact must be stated, with time and place.” In the cases cited by them, the court found the indictments defective in this respect. The inquiry arises, is it so in the present case? We find the allegation of place fully and distinctly stated in the venue. The indictment alleges that the defendant therein, “ at Boston in the county of Suffolk ” did then and there anlawfully, knowingly and designedly make the false pretences vhich are set forth. Then follow the recitals of the false representations alleged to have been made by him, and it is only in those recitals of the language of his false pretences that any other locality is named than Boston. The present is not a case where two distinct times and places have been stated in the indictment at which the substantial offence has been committed. The introduction of the city of New York was merely a recital of his alleged false pretence that he had received an order from certain persons residing in New York to purchase for them two thousand bags of linseed. Upon no sound principle of construction can we hold that such recital makes uncertain the place of the alleged offence, or the application of the various subsequent allegations in the indictment of the acts of the defendant to any other place than the place originally named — “ Boston, in the county of Suffolk.” We are to give effect to the time and place alleged in the venue as applicable to subsequent parts of the indictment when no other place is named to which they may equally, or, as the case may be, directly refer. Commonwealth v. Lamb, 1 Gray, 493. Commonwealth v. Doherty, 10 Cush. 52.

The acts of the defendant in the indictment are not, as is assumed on the part of the defendant, alleged to have occurred in the city of New York. Nothing countenances this, but on the contrary the whole tenor of the indictment is that the statements of the defendant alleged therein as to any order from New York were false statements by him made in Boston, and by means of which he in Boston fraudulently acquired the possession of the property of the persons to whom the false pretences were made. If it be said that the words “ then and there,” found in the indictment after the naming of the city of New York as the residence of the persons alleged in the indictment to have authorized the defendant to purchase such linseed, grammatically and therefore legally refer to the next antecedent, that must be taken with some qualification, as was stated by this court in Commonwealth v. Call, 21 Pick. 515, where it was held that words must be referred to that antecedent to which the tenor of the indictment and the principles of law required it should refer, whether exactly according to the rules of syntax or not. Certainly, in looking for an antecedent for other distinct allegations in the indictment, we are not required to regard as such a statement of place which occurs solely in the recital of the words alleged to have been used by the defendant, as the false pretences by which he fraudulently acquired the property of another, and descriptive merely of the locality of his alleged principals.

The fourth and fifth errors assigned are clearly unfounded, and were not pressed in the argument.

The sixth and ninth errors assigned seek to reverse the judgment for insufficiency of the record as to the names of the persons and the legal qualifications and competency of the grand jurors who found the indictment, and of the jury of trials by whom the verdict was rendered. The cases of Turns v. Commonwealth, 6 Met. 225, and Commonwealth v. Edwards, 4 Gray, 1, fully dispose of these objections, and show them to be unavailing.

The eighth error assigned is not correct as to the fact assumed, and requires no further answer.

The seventh error assigned is, that there is a total omission on the record of the allocutus, or demand of the defendant “ what he has to say why judgment should not proceed against him.”

The attempt to avoid a judgment by a writ of error for such omission is novel in this commonwealth, and is so strongly urged as to require of us a full consideration. As to the practice of propounding such a question, as well as the introduction of the names of the jurors in an indictment, and other forms of proceedings in conducting criminal trials, we must be governed by our own well settled rules, rather than by those of the English courts, or those of the states that have followed the English precedents.

No such recital on the record has been deemed necessary here, nor has such fact usually been stated, except in capital trials. We do not understand that in felonies not capital any formal question corresponding to that stated is required to be put to the defendant upon his conviction by the jury and before sentence. Practically, full opportunity is to be given for assigning reasons why judgment should not proceed against him, and the opportunity is secured by the course of proceedings in each case. Sentence is not pronounced until the party has had ample opportunity to move for a new trial for any p' iper cause, and to file his exceptions to the rulings in matters of law, or a motion in arrest of judgment. 3

A recurrence to the cases cited, so far as examined, would lead us to suppose that it was in capital cases that this error has been held fatal to the judgment. The doctrine as stated in 4 Bl. Com. 375,1 Chit. Crim. L. 700, and 1 Archb. Crim. Pr. 180, applies to such cases. The case of Rex v. Royce, 4 Burr. 2086, and the case in 3 Mod. 265, were capital cases.

But however that may be, and independently of any practice of our own in this matter, the recitals on this record do show all that can be necessary. They establish the fact either of such demand, or a waiver of it, as the defendant did attempt to show cause why judgment should not proceed against him. He moved the court for a new trial upon the ground that the verdict was against the evidence and against law. He filed successively a motion in arrest of judgment for alleged insufficiency of the indictment, and a bill of exceptions, and upon all these was fully heard.

The objections taken under the general assignment of errors are all equally unavailing.

There is no such defect in the'record, in stating the name and office of Honorable Thomas Russell, the presiding judge at the trial, as will avoid this judgment. The record connects him with the superior court, and as the presiding justice at the trial.

Nor is it necessary that the record should in direct terms state hat the party was personally present at the time of the rendion of the verdict, and during all the previous proceedings of 'die trial. However necessary it may be that such should have been the fact, it is not necessary to recite it in the record. The record shows that he was present at the arraignment, and present to receive his sentence.

A suggestion was made by the court at the argument, that, as the plaintiff in error had already been heard on a motion in arrest of judgment, and that motion been overruled, the party could not by writ of error raise any question which was open tc him on such motion in arrest of judgment. In the view we have taken of the errors assigned, it has become unnecessary to consider that question, and no opinion is given upon that point.

* Gray, J. did not sit in this case.