Commonwealth v. Jacobs , 152 Mass. 276 ( 1890 )

Knowlton, J.

In this Commonwealth several different substantive offences may be included in different counts of the same indictment, when they are of the same general nature, and when the mode of trial and the nature of the punishment are the same. Carlton v. Commonwealth, 5 Met. 532. Commonwealth v. O' Connell, 12 Allen, 451. Commonwealth v. Brown, 121 Mass. 69. Commonwealth v. Adams, 127 Mass. 15. The two offences charged in this indictment are of a similar character, and punishable in the same way, and they fall within this rule.

It is equally well settled that the same offence may be alleged in different counts of an indictment to have been committed in different modes, and by different means, so as to meet different possible phases of the evidence. Pettes v. Commonwealth, 126 Mass. 242, and cases there cited. In applying the St. of 1861, c. 181, (Pub. Sts. c. 213, § 18,) the court seems to have recognized the doctrine which is stated in Commonwealth v. McLaughlin, 12 Cush. 612, and 12 Cush. 615; and virtually to have held that, at the common law, different offences founded on the same facts may be stated in different counts of an indictment, provided they are of the same general nature, and punishable in a similar way. Commonwealth v. O' Connell, 12 Allen, 451. Commonwealth v. Costello, 120 Mass. 358. See also Commonwealth v. Cain, 102 Mass. 487. There is no reason in principle why this rule should not prevail. The statute referred to was not intended to impose upon the criminal pleader any new restrictions, and its principal, if not its only purpose, was to permit, in different counts of an indictment, the joinder of allegations of different offences founded on the same facts, when the offences so differ in their nature, or are so differently punishable, that they could not have been joined prior to the enactment of the statute. The motion to quash was rightly overruled.

The rule was well established, when questions of this kind were raised upon a motion in arrest of judgment, that misjoinder is cured by a verdict for the defendant on all but one of the counts; and it has since been laid down in cases in which this statute was invoked. Whether, if this case came within the statute, the rule should be treated as properly applicable to a case where the defendant is wrongly forced to a single trial upon different counts which cannot legally be joined, it is unnecessary to decide. See Commonwealth v. Packard, 5 Gray, 101; Commonwealth v. Holmes, 103 Mass. 440; Commonwealth v. Chase, 127 Mass. 7, 14; Commonwealth v. Adams, 127 Mass. 15, 18.

The defendant’s request for a ruling in relation to a variance was rightly refused. If the club which kept the place was the same that was incorporated under the name “ Warren Social Club,” there was evidence to warrant the jury in finding that it was as well known by the name Warren Club as by that under which it was incorporated, and the instructions were sufficiently favorable to the defendant.

To convict the defendant, it was not necessary to show that the sole purpose of the Warren Club was to sell, distribute, or dispense intoxicating liquors to its members or others. It was enough if one purpose for which it kept the tenement was so to use it illegally.

The evidence tended to show that the principal purpose for which the tenement was kept was to sell, distribute, or dispense intoxicating liquors. The only testimony which tended to control the inference naturally to be drawn from the circumstances was that of the defendant himself, who endeavored to show that the only persons who were accustomed to obtain liquor there were members of the club, each of whom used liquors which had been bought for him elsewhere on his personal account and as his individual property. The jury might well have disbelieved that part of the defendant’s statement. There was much in the circumstances which tended to contradict him. The defendant told an officer that he ran the place. Men were found drinking from bottles on which were pasted the names of other persons. Many utensils and other articles in the room were such as the jury might have found to be the furnishings of an ordinary bar-room. At one time the defendant and another person were found handling eleven cases of lager beer, all marked with the same name. A gallon jug,containing whiskey was marked “Warren Club, Worcester.” The defendant made no reply when told by the officer that he could not find in the list of members of the club the names of Powers and Davenport, who were seen drinking there; and there was much else to throw suspicion on the defendant’s story. On the whole evidence, the jury might well have believed that all the liquor on the premises was the property of the club.

We do not intend to intimate that they might not have found the defendant guilty, if they had trusted him implicitly in all that he said. There is much force in the contention that a place kept by a club for the purpose of having liquors ordered from wholesalers by the club’s agent, and brought there for individual members, to be left in his charge and drunk there from time to time by the owners, is as clearly within the prohibition of the statute as if the liquors were bought and dispensed as the property of the club. The defendant’s request for a ruling that there was no evidence that would warrant a conviction on the second count was rightly refused.

The paper and the book, to the admission of which in evidence exception was taken, were on the premises of which the defendant had the care, and where he might have seen them. They pertained to the business of which he had charge, and were rightly admitted. Exceptions overruled.