CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, FOR THE COUNTIES OF HAMPSHIRE AND FRANKLIN, AT GREENFIELD, SEPTEMBER TERM, 1873. 'Whetner the force used as a defence against a battery is appropriate in kind and in degres is a question for the jury. ▲ complaint dated September 2 charged the defendant with the commission of an assault and battery upon the complainant on the same day; the complainant in his testimony stated the time as the second Monday of September, and the defendant testified withou making any statement as to the time. Held, that from this evidence under appropriate instructions the jury might find that the assault was committed on the second day of September and before the issuing of the warrant. COMPLAINT to a trial justice, by Bernhardt Leipshutz, charging the defendant with an assault and battery upon the complainant on the second day of September, 1872. The complaint also bore date September 2, 1872. Commonwealth v. Bush. At the trial on appeal in the Superior Court before Bacon, J., the complainant testified that on the second Monday of September, 1872, he was coming from a meeting of Germans to his home, when he was overtaken by the defendant, who had also attended the meeting, both being on the sidewalk; that angry words passed between them as to the defendant's boy; that he told the defendant his boy was a liar, whereupon the defendant struck him; that he went from the sidewalk into the street, and the defendant followed him into the road and struck and kicked him. The defendant testified that he overtook the complainant and they had angry words about the boy, when the complainant went out into the street and dared him to come out into the street; that he kept on the sidewalk till he reached Massasoit Street, where he was to turn off to go to his home, when the complainant came from the street to the sidewalk and took hold of his shoulder and tore his coat, and then took hold of his ear, whereupon he took hold of the complainant and they both kicked at the same time. He also testified that he did not touch the complainant at any time till the complainant tore his coat and had hold of his ear. The defendant asked the court to rule that if the complainant caught hold of his shoulder and then of his ear, he would not be guilty if he should then clinch the complainant and should kick the complainant at the same time the complainant kicked him. He also asked the court to rule that upon the evidence, he could not be convicted. The court declined so to rule, and ruled, among other instructions to which no exception was taken, that it was a question for the jury to decide whether upon the whole evidence the defendant used unjustifiable force upon the complainant; that words cannot justify an assault; that the defendant had a right to use reasonable force proper in kind and degree to protect his person against an assault or an immediately impending assault, and could be convicted in this case only upon evidence that proved beyond a reasonable doubt that the defendant used more force than was necessary, or force improper in kind and degree, under all the circumstances of the case, for defence against either an actual assault, or an immediately impending assault. Commonwealth v. Graves. The jury found the defendant guilty, and he alleged exceptions C. R. Train, Attorney General, for the Commonwealth. COLT, J. It is always a question of fact for the jury whether the force which is used as a defence against an assault is appropriate in kind and degree. The jury were here told that the defendant had a right to use reasonable force proper in kind and degree to protect his person. This was all that the case required upon the points complained of in the exceptions, and permitted the jury to make all due allowance for infirmity of human passion and impulse in resisting a sudden blow. If more particular instructions upon this point were desired, the attention of the court should have been distinctly called to them. Commonwealth v. Clark, 2 Met. 23. Other instructions were given which are not reported, and under them the jury must have found that the assault complained of was committed by the defendant on the second of September before the warrant was issued, notwithstanding the complainant testified, inadvertently, no doubt, that it was on the second Monday of September. Exceptions overruled. COMMONWEALTH vs. WASHINGTON GRAVES. A prisoner cannot appeal from an order of court that he be discharged and go without day. COMPLAINT to a trial justice, charging the defendant with larceny. At the close of the examination before the trial justice the defendant was ordered to recognize with sufficient sureties for his appearance before the Superior Court at its next term. Failing to comply with this order, he was committed to jail. At the next term of the Superior Court, and while the complaint was pending before the grand jury, on motion of the district attorney, it was ordered by the court that the defendant be discharged and go without day. From this order the defendant appealed. Commonwealth v. Maloney. D. W. Bond, (H. H. Bond with him,) for the defendant. C. R. Train, Attorney General, for the Commonwealth. BY THE COURT. The defendant is not legally aggrieved by his discharge from custody, and therefore cannot appeal from the order of discharge. Appeal dismissed. COMMONWEALTH vs. PATRICK MALONEY. An allegation in a complaint that the defendant kept intoxicating liquors on September 10, 1870, with intent to sell them in violation of law, is not supported by proof of such keeping on September 10, 1872, the punishment for the offence having in the mean time been increased by law. COMPLAINT for the illegal keeping of intoxicating liquor. The complaint alleged the keeping on the tenth day of September, in the year eighteen hundred and seventy. At the trial upon appeal in the Superior Court, before Rockwell, J., the evidence was confined to a keeping on the 10th of September, 1872. The defendant objected that such evidence would not support the allegation in the complaint. The court overruled the objection, and the jury having returned a verdict of guilty the defendant alleged exceptions. C. Delano, (J. C. Hammond with him,) for the defendant. C. R. Train, Attorney General, for the Commonwealth. MORTON, J. The complaint in this case alleges that the defendant on the tenth day of September, 1870, at Northampton, mlawfully kept intoxicating liquors with intent to sell the same. At the time laid in the complaint, the offence charged was punishable by fine and imprisonment, and in addition thereto the defendant was required to recognize to the Commonwealth in a sum not less than one thousand nor more than two thousand dolars, that he would not within a year violate any of the provisions of the laws relating to the manufacture and sale of intoxicating liquor. St. 1869, c. 415, §§ 36-59. By the St. of 1872, c. 317, which took effect on the first day of July, 1872, the punishment was so altered that the defendant might be required to recognize Commonwealth v. Maloney. in a sum not less than one hundred nor more than two thousand dollars, "with sufficient sureties." The punishment which might be imposed under the St. of 1872 is greater in degree than that required by the St. of 1869, as it imposes upon the defendant the additional burden of furnishing sufficient sureties to his recognizance. This being so, we are of opinion that the proof that the defendant kept intoxicating liquors with intent to sell the same, on the tenth day of September, 1872, did not sustain the allegations of the complaint. It is true that generally, in criminal prosecutions, it is not necessary that the precise time alleged should be proved. But every indictment or complaint must allege a precise day, and the time alleged must be such that the record will show that an offence has been committed, and that the court may ascertain from it what punishment is to be imposed. When a statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offence, to the extent that it must be alleged to have been after such day. So if a statute changes the punishment of an existing offence by imposing a severer penalty, with a clause saving from its operation offences already committed, the allegation of time is material. The nature and character of the offence, and the penalty affixed to it depend upon the time when the act charged is committed. If in such a case an indictment alleges the act to have been committed before the passage of the statute enlarging the penalty, the offence charged and the punishment annexed to it are different from the offence and punishment, if the act is committed after such time. They are different offences, and an allegation of one is not sustained by proof of the other. Otherwise the defendant would be exposed to a greater punishment upon a trial than he would be upon a plea of guilty. In the case at bar, the offence proved was different from the offence charged in the complaint, and the defendant was entitled to the ruling requested, that the evidence did not support the complaint. Exceptions sustained. |