313 Mass. 121 | Mass. | 1943
The indictment charged that the defendant, on certain dates, “knowing one Norma Ferguson to be a prostitute, did live and derive support and maintenance, in whole or in part, from the earnings and proceeds of her prostitution, from moneys loaned, advanced to and charged against her by a keeper and manager and inmate of a house and place where prostitution was practiced and allowed, and did share in such earnings, proceeds and moneys.” G. L. (Ter. Ed.) c. 272, § 7. There was evidence that the defendant
In his instructions to the jury, the trial judge said: “Before arguments started I instructed you to disregard certain portions of the indictment and I shall now restate it in order that there be no misunderstanding. The indictment reads that one Bracy, . . . ‘knowing one Norma Ferguson to be a prostitute’ now strike out ‘did live and derive support and maintenance, in whole or in part, from the earnings and proceeds of her prostitution, from moneys loaned, advanced to and charged against her by a keeper and manager and inmate of a house and place where prostitution was practiced and allowed’ and continue ‘did share in such earnings, proceeds and moneys’; so that the indictments, naming . . . [the] defendant, will read ‘on the 10th day of September, 1941 and on divers other days and times between that day and the day of the presentment of this indictment, knowing one Norma Ferguson to be a prostitute, did share in such earnings, proceeds and moneys.’”
After the jury had returned a verdict of guilty, an examination of the indictment showed that, as submitted to and sent out with the jury, it contained a parenthesis after the words “knowing one Norma Ferguson to be a prostitute,” and before the words “did live and derive support,” and a parenthesis after the words “practiced and allowed, and” and before the words “did share in such earnings,” that lines had been drawn through all the words in the indictment between the parentheses, and that on the margin of
The defendant does not contend that the indictment, as returned by the grand jury, infringed any of his constitutional rights. Constitution, Declaration of Rights, art. 12. G. L. (Ter. Ed.) c. 277, § 17. The indictment is substantially in the words of G. L. (Ter. Ed.) c. 272, § 7, and this is generally sufficient as matter of criminal pleading. Commonwealth v. Pentz, 247 Mass. 500, 505, and cases cited. Said § 7 describes several acts, all of which are alleged in the indictment, see St. 1910, c. 424, § 5; St. 1914, c. 621; Commonwealth v. Peretz, 212 Mass. 253, 254, and a conviction upon such an indictment is supported by proof of the commission of any one of the acts alleged. Commonwealth v. Martin, 304 Mass. 320, 322, 323, and cases cited. If the judge had merely withdrawn from the consideration of the
If an indictment fails to allege any fact necessary to' constitute an offence, even statutory, it is defective. Commonwealth v. Maxwell, 2 Pick. 139, 143, 144. Commonwealth v. Proprietors of Newburyport Bridge, 9 Pick. 142. Commonwealth v. Whitney, 5 Gray, 85, 87. The Commonwealth contends that the indictment as received by the jury, was one that would enable a person of common understanding to know what was intended. It is undoubtedly true that the trial jury did understand that the word “such” comprehended the earnings of Ferguson or the proceeds of her prostitution, about which they had been hearing evidence. But this fact is not decisive. If the grand jury had returned an indictment in the language as submitted to the jury by the judge, clearly it would have been defective, and where an essential word or clause is omitted from an indictment, such omission is fatal and the essential allegations cannot be supplied by any intendment, argument, inference or implication. Kutler v. United States, 79 Fed. (2d) 440, 442. Commonwealth v. Proprietors of Newburyport Bridge, 9 Pick.
One purpose of an indictment is to enable the defendant to plead the conviction or acquittal in bar to another prosecution for the same offence. Commonwealth v. Wade, 17 Pick. 395, 399. See Commonwealth v. DiStasio, 294 Mass. 273, 277, 278. We think it clear that if the conviction in the case at bar rested upon the indictment as submitted to the jury, or upon the oral instructions of the judge, the defendant would be unable to plead his conviction in bar to another prosecution for the offence of which it is contended he was here convicted.
General Laws (Ter. Ed.) c. 277, § 35A, provides that, upon motion of the district attorney or prosecuting officer, the court may order the complaint or indictment amended in relation to allegations or particulars as to which the defendant would not be prejudiced in his defence. In the absence of an enabling statute, an indictment cannot be amended. Commonwealth v. Snow, 269 Mass. 598, 605. See Ex parte Bain, 121 U. S. 1. In the case at bar it does not appear that the district attorney made any motion to amend the indictment. If we regard what was done as
The case at bar is distinguishable from Commonwealth v. Fagan, 15 Gray, 194, Commonwealth v. Desmarteau, 16 Gray, 1, 16, and Commonwealth v. Roland, 97 Mass. 598. See Commonwealth v. Galligan, 113 Mass. 203, 206.
In whatever way the case is considered, the conclusion is reached that the defendant was convicted of no crime, and that the motion in arrest of judgment ought to have been granted. No court has jurisdiction to sentence a defendr ant for that which is not a crime. Commonwealth v. Hinds, 101 Mass. 209. Commonwealth v. Andler, 247 Mass. 580, 582.
In view of the conclusion reached, we think it is unnecessary to consider other exceptions of the defendant.
Judgment reversed.
Verdict set aside.
The material portion of the indictment as changed is reproduced. THE JURORS for the Commonwealth of Massachusetts on their oath present that
JULIUS BRACY
on the tenth day of September in the year of our Lord one thousand nine hundred and forty-one, and on divers other days and times between that day and the day of the presentment of this indictment, knowing one Norma Ferguson to be a prostitute.-Id-id live and der-ive-mipport, and mnintmirnpry -fat-whole or in part, from-the earnings and-proceeds of her prostitution, from-monoya loaned, advanced-to-and-charged against her by a keeper and-man— -ager and inmate of a house and place where prostitution-wns pmntiinod itnd-allowed, and) did share in such earnings, proceeds and moneys.
Out as directed by Court