113 Mass. 200 | Mass. | 1873
The defendant’s plea in bar of a former acquittal before the Municipal Court of Taunton, of the same offence for which he now stands indicted in the Superior Court, is in the form prescribed by St. 1864, c. 250, § 4, and is therefore sufficient in form, without more fully setting out the record of that acquittal, or the facts relied on to prove the identity of the former offence with that now charged against him. It would have been open to him, under this plea, to prove that the money which he is charged with having embezzled, although now alleged to have been of the value of six hundred dollars, was in fact of any less value, and that the two offences successively charged against him were identical. Commonwealth v. Sawtelle, 11 Cush. 142, 145. Commonwealth v. Hussey, 111 Mass. 432. If its value did not actually exceed fifty dollars, the offence was clearly within the jurisdiction of the Municipal Court. Gen. Sts. c. 116, §§ 13, 14. St. 1864, c. 209, § 21. The plea not necessarily showing that the two offences were distinct, nor that the Municipal Court had no jurisdiction, the attorney of the Commonwealth, if he intended to deny their identity, should have joined issue on the plea, and submitted that fact to the determination of a jury. By demurring .to the plea, he admitted the truth of the allegation therein that the offence now charged against the defendant was the same of which he had been already acquitted. 2 Hale P. C. 243. 1
Judgment rendered thereon for the defendant.
