Commonwealth v. Dascom. COMMONWEALTH v8. CHARLES W. DASCOM. The defendant to an indictment having pleaded autrefois convict, and the Commonwealth having replied that the conviction was procured by the defendant's fraud, it was agreed by the parties that the defendant should also plead not guilty and that both issues should be tried at the same time by the jury, which was done, and the jury found the defendant guilty. Held, that he had no ground of exception. A former conviction is no bar to an indictment for an assault, if it was fraudulently procured by the defendant for the purpose of avoiding the effect of a complaint by the person assaulted; and evidence that the defendant, a few hours after the assault, sought to make a complaint against himself before a trial justice, and failing in this, got a constable to complain of him before another trial justice, immediately pleaded guilty and was fined, is sufficient to warrant a finding of such fraudulent procurement. INDICTMENT for an assault and battery upon Joseph S. Howland. The defendant filed a plea alleging that he had been convicted of the assault and battery on a complaint before a justice of the peace. The Commonwealth filed a replication, admitting the fact of the conviction, but alleging that the defendant procured it "by his own confession, information and procurement and by fraud." Trial in the Superior Court for Middlesex, before Putnam, J., who allowed the following bill of exceptions: "It was agreed between counsel that the defendant should enter a plea of not guilty, and that the questions raised by the plea and replication should be tried before the jury, at the same time with the trial upon the merits. The defendant then, before the jury, admitted that he committed the assault complained of, offered in evidence the record of the former conviction, claimed that it was conclusive in this case, and asked the judge so to rule and to instruct the jury to return a verdict of not guilty. "The district attorney admitted that the offence set forth in the record was the same as that now on trial, but claimed that the defendant fraudulently procured himself to be complained of by some person other than the injured party, for the purpose of avoiding the effect of a subsequent complaint by the injured party. "The judge declined to rule as requested by the defendant, but stated that the record of the former conviction was conclusive in this case, and that he should instruct the jury to find the defendant Commonwealth v. Dascom. not guilty, unless they found that the defendant fraudulently procured himself to be complained of before the magistrate and arrested on a warrant, and voluntarily submitted to a conviction on such complaint, for the purpose of avoiding the effect of a subsequent complaint made by the injured party, which he believed, or had reason to believe, would be made against him; and the judge allowed the Commonwealth to offer evidence on this point. "The Commonwealth then offered evidence tending to show, that about three hours after the assault was committed, the defendant went to a trial justice in Natick, stated to him that he had committed an assault on Howland, and wanted to complain of himself. The trial justice refused to take the complaint under such circumstances, and the defendant then went to a constable in Wayland and told him he had committed the assault, and wanted to put himself under arrest and be taken at once before David Heard, Esquire, a trial justice in Wayland, that his case might be disposed of immediately. The constable then took him to said justice, and made the complaint, the justice issued the warrant, the defendant was arrested by the constable on the warrant, told his own story to the magistrate, pleaded guilty of the offence, and was fined. "On this evidence the judge left it to the jury to say whether the defendant acted bona fide from honest motives or not, and gave them the instructions which he had previously indicated he should give. The jury found the defendant guilty," and he alleged exceptions. L. H. Wakefield, for the defendant. J. C. Davis, Assistant Attorney General, for the Commonwealth. GRAY, J. The trial of the issue upon the plea of the former conviction together with the general issue in the case was irregular, but, as it was by agreement, the defendant is bound by the result. Commonwealth v. Merrill, 8 Allen, 545, 547. The jury, having been instructed to find the defendant not guilty "unless they found that the defendant fraudulently procured himself to be complained of before the magistrate and arrested on a warrant, and voluntarily submitted to a conviction on Commonwealth v. Dascom. such complaint, for the purpose of avoiding the effect of a subse quent complaint made by the injured party, which he believed, or had reason to believe, would be made against him," have, by convicting the defendant, necessarily found that there was such fraudulent conduct on his part. It has been settled in this Commonwealth from a period before the reports of decisions began to be published, that a conviction for assault and battery, obtained by collusion of the defendant before a justice of the peace, was no bar to an indictment for the same offence. Notes of two cases before the full court upon the subject, have been preserved among the manuscripts of Chief Justice Dana. In the first, also reported in 6 Dane Ab. 731, the attorney general, after demurrer to the plea of autrefois convict, and judgment thereon for the defendant, was refused leave to replead and allege that the conviction was obtained by collusion. Commonwealth v. Sheldon, Essex, November term 1789. In the second, the attorney general replied to the plea of a conviction of the same offence before a justice of the peace, that it was procured by collusion of the defendant; the defendant rejoined, traversing the collusion, and tendering an issue to the country, in which the attorney general joined; upon a trial, the jury found that the former conviction was collusive in manner and form as set forth in the replication, and the defendant was sentenced. Commonwealth v. Brown, Middlesex, October term 1798; Rec. 1798, fol. 180. The latter is evidently the case referred to by the court in Commonwealth v. Alderman, 4 Mass. 477. Like de cisions have been made in other states. State v. Little, 1 N. H. 257. Commonwealth v. Jackson, 2 Va. Cas. 501. State v. Epps, 4 Sneed, 552. State v. Green, 16 Iowa, 239. The instructions at the trial were in accordance with these decisions, and the evidence introduced was sufficient to warrant the jury in finding that the former conviction was procured by the raud of the defendant. Exceptions overruled. Commonwealth v. Smith. COMMONWEALTH vs. ROBERT SMITH. The Gen. Sts. c. 19, § 15, and St. of 1870, c. 227, provide that "the city marshal or other police officer, or the city treasurer, may prosecute for all fines and forfeitures which may enure to the city." Held, that a constable of a city could not prosecute for such a fine, and that the objection could be taken after a plea of not guilty to a complaint by him. COMPLAINT to the Municipal Court for the Southern District of the city of Boston, by Benjamin Merriam, a constable of said city, for a violation of the Gen. Sts. c. 26, § 47, relating to the public health, by neglecting to give notice to the board of health of Boston that a person within the family of the defendant, who lived in Boston, was taken sick of small-pox. At the trial, on appeal, in the Superior Court, before Bacon, J., the defendant pleaded not guilty, and after the Commonwealth had rested its case, he requested the judge to rule that the complaint could not be maintained, inasmuch as the complainant had no authority to prosecute; but the judge refused so to rule. There were other questions in the case, which it is not now necessary to state. The jury returned a verdict of guilty, and the defendant alleged exceptions. F. Woodside, for the defendant. J. C. Davis, Assistant Attorney General, for the Commonwealth. AMES, J. The principal question raised in this case is disposed of by the decision of this court in Commonwealth v. Fahey, 5 Cush. 408. That case arose under the St. of 1849, c. 211, § 7, which provided that "all fines and forfeitures, incurred under the general laws, or the special laws applicable to any town or city, or the ordinances, by-laws, and regulations of any town or city, relating to health, shall enure to the use of such town or city; and may be recovered by complaint in the name of the treasurer." It was held by the court in that case, substantially, that the word "may was equivalent to "shall," and that the power to collect such fines was vested exclusively in the treasurer. Commonwealth v. Wood. The prosecution in the present case rests upon statute provi sions, which, so far as this point is concerned, are identical with the statute commented upon in Commonwealth v. Fahey, the only difference being that the authority to make the complaint is given to the city marshal, or other police officer, and not confined to the treasurer. Gen. Sts. c. 19, § 15; c. 26, § 50. St. 1870, c. 227. The complaint in this case was made by a constable; but as the term "police officer" is used in the statutes (Gen. Sts. c. 18, § 38) to describe a class of officers who are not constables, the complainant cannot be called a police officer for this purpose. It is not for us to say that there is no manifest reason for giving this authority to one set of officers, to the exclusion of another set. Ita lex scripta est, and it can only be administered according to its terms. As this objection goes to the jurisdiction, it cannot be said to have been waived by the plea of not guilty. The complaint must therefore be Dismissed. COMMONWEALTH vs. ROBERT WOOD. On an indictment for cruelly overdriving a horse, evidence that the defendant's parent formerly requested the owner of the horse not to let horses to the defendant, is inadmissible. On an indictment for cruelly overdriving a horse, a witness testified that she had seen the defendant driving, and he was not then overdriving; on cross-examination, she denied that she had said, in conversation with J. S., that the defendant was guilty; on reëxamination, she was inquired of as to this conversation. Held, that evidence that she had told J. S. that the defendant was guilty, was admissible. On an indictment for cruelly overdriving a horse, the judge instructed the jury that the Commonwealth must prove that the defendant over drove the horse knowingly and intentionally; and that he was presumed to intend the natural and necessary results of his acts; but that if, in the proper exercise of his own judgment, he thought he was not overdriving the horse, he must be acquitted. Held, that the defendant had no ground of exception. COMPLAINT for wilfully and cruelly overdriving a horse. At the trial, on appeal, in the Superior Court in Suffolk, before Devens, J., the Commonwealth introduced evidence that the defendant hired the horse from a livery stable and overdrove it, and it appeared that the defendant was at the time a minor |