Commonwealth v. Mahoney

Morton, C. J.

A defendant cannot be legally convicted in an appellate court of a different offence from that of which he was convicted in the court appealed from. He can only be tried for the same offence. But the identity of the offence is not to be determined solely by the date given in the complaint or testified to by the witnesses. Time is often, as in the case at bar, not a material element of the offence, and need not be proved as alleged. The identity may be determined by other facts and circumstances. In the case at ■ bar, the jury have found that the sale of liquor testified to in the Superior Court was the same sale which the witness testified to in the court appealed from. The mistake of the witness in fixing the day of the sale, in his testimony in the lower court, is immaterial. The defendant has been convicted in the Superior Court of the same offence of which he was convicted in the court below, and has no ground of complaint. Commonwealth v. Dillane, 11 Gray, 67. Commonwealth v. Baldwin, 129 Mass. 481.

Exceptions overruled.