Commonwealth v. Fletcher , 157 Mass. 14 ( 1892 )

Holmes, J.

The defendant’s motion to dismiss is based upon facts which do not appear upon the record. It is true that the allegations of the motion were admitted by the government, but we infer from the course of proceeding and argument that the admission was made subject to the objection that the facts could not be introduced in that way. See Commonwealth v. Brown, 150 Mass. 334, 342. In Richardson v. Welcome, 6 Cush. 331, relied on by the defendant, the action was dismissed on motion supported by evidence, but the evidence showed that the action was brought before a justice of the peace by his direction, and therefore that the case was within the Rev. Sts. c. 85, § 34, (Pub. Sts. c. 155, § 73,) which says that civil actions so commenced shall be dismissed. Perhaps it would have been possible to extend the practice by analogy to civil cases in which the justice was interested. But the contrary seems to be settled in criminal proceedings. Commonwealth v. Edwards, 12 Cush. 187. See also Crosby v. Harrison, 116 Mass. 114. Commonwealth v. Donahue, 126 Mass. 51. Commonwealth v. Brown, ubi supra.

If, however, we are to assume that the government intended to waive all questions of form, and to rely on the insufficiency of the facts alleged to defeat the jurisdiction of the trial justice, we are of opinion that its position is right. The fact that the trial justice who received and heard the complaint was a resident and tax-payer of the town of Natick where the offence was committed gave him no interest except in a case in which the defendant did not appeal, since, by the St. of 1891, c. 416, § 1, as well as by the St. of 1890, c. 440, § 5, which it replaced, the town where the offence was committed has no interest in the fine unless it is both imposed and paid in the inferior court. Commonwealth v. Gay, 153 Mass. 211, 217. If such a possibility of interest is sufficient otherwise to disqualify a trial justice, the disqualification is removed by the Pub. Sts. c. 160, § 13, that no person shall be disqualified from acting as judge, etc., in a suit or proceeding in which a city or town is .interested, by reason of his interest as an inhabitant thereof. It is true that the town was not interested as a party, but as the trial justice was only interested through the town, the town was interested in the literal sense of the word, if any one was. There is no reason for cutting down the literal meaning of the statute by interpretation. See Commonwealth v. Brown, 147 Mass. 585, 591.

The other objection we understand to be this. By the Pub. Sts. c. 101, § 7, the punishment of the defendant’s offence is fine and imprisonment. By the Pub. Sts. c. 155, § 53 giving jurisdiction of the offence to trial justices, the punishment is fine or imprisonment, as the defendant construes the act. By the Pub. Sts. c. 215, § 8, a discretion is given to sentence to fine or imprisonment alone in the case of first convictions. Therefore, the defendant argues, the jurisdiction of trial justices must fye limited to cases where there has been no former conviction, since those are the only ones in which a punishment by fine or imprisonment is contemplated. But the answer is, that the jurisdiction given by c. 155, § 53, is of “ all offences ” under c. 101, §§ 6, 7. Section 7 of the Pub. Sts. c. 101, represents § 3 of the St. of 1866, c. 280, which in respect to this class of cases overrides the earlier statutes of 1865, c. 281, and 1863, c. 78, represented by the Pub. Sts. c. 155, § 53.

Exceptions overruled.