Commonwealth v. Downing , 150 Mass. 197 ( 1889 )

Devens, J.

The questions which the defendant seeks to present by his appeal from the order of the Superior Court in each case, overruling what he terms his “ demurrer to jurisdiction of court and plea in bar by estoppel,” are not stated in accordance with any known rules of pleading, nor even intelligibly. Without regard to the form of his demurrers, their manifest irregularities, or the mode in which the defendant seeks to bring his cases before us, we cannot find, on careful examination, that any injustice has been done him in the Superior Court.

In the first case, the defendant had been convicted of drunkenness before a magistrate, and had appealed from such conviction to the Superior Court, and since the overruling of his demurrer has been convicted of the same offence in that court. His demurrer sets forth that it is unlawful to try a person twice for the same offence, and that it is unlawful to imprison him more than thirty days for the simple offence of drunkenness. The defendant does not state when or where he was before tried for the same offence, but evidently refers to his previous trial by the inferior court. The defendant by his appeal vacated the decision and sentence of that court, and he has not yet been sentenced in the Superior Court. He has undergone no punishment and no imprisonment for his offence. His detention in the jail from a failure to give the bail required, has been only that he might be present before the court to which he appealed. A.t the time he filed the so called demurrer, he had not been tried a second time for the same offence, and when he was afterwards tried in the Superior Court he was not, within the meaning of the law, put in jeopardy twice, as his first conviction had been vacated by his own appeal. The defendant then alleges that at a former trial the complainant then swore that he had never seen the defendant use intoxicating liquor. If the complainant as a witness should testify at one trial in a manner different from that in which he should testify at the subsequent trial, this would be a matter which might affect his credibility, but would not render the complaint demurrable, nor would it be a foundation for a plea in bar.

Without minutely considering the defendant’s demurrer in the second case, which was a complaint for a breach of the peace, and in which the demurrer in substantial respects resembles that in the first case, we are of opinion that both were properly overruled.

Orders overruling demurrers and pleas affirmed.