Commonwealth v. Dillane
77 Mass. 67
Mass.
1858
Check Treatment
Dewey, J.

1. The court of common pleas correctly held that there were two distinct offences charged in the complaint, and that the defendant might properly be put on trial on the second count.

2. The objection that the record of the police court does not show that the defendant had recognized to appear upon the day to which the complaint was continued, or specially state that he was present, cannot avail the party who has taken an appeal from the judgment of the police court, and has entered his appeal, and is now prosecuting it here. His appearance at the court holden by adjournment, if it took place, was sufficient, and such we must assume to have been the fact, from his appeal regularly taken and certified by the police court.

3. The papers sufficiently show that the complainant subscribed and swore to the complaint. Commonwealth v. Keefe, 7 Gray, 332.

4. It is not necessary, on the trial of a case appealed from the *71police court, that it should appear by the record or otherwise that the complainant was examined on oath on the trial of the cause in the court below in the presence of the party charged. The provision of the Rev. Sts. c. 135, § 12, applies, so far as the complainant is concerned, to eases where he is relied upon and introduced to sustain the charges on the trial. If he is used as a witness, he must, like all other witnesses, be examined in the presence of the party charged. But a complainant may have such evidence as may justify his making a complaint, though not an eye witness to the acts alleged to have been done. In such case, the government relying upon other evidence, he need not be examined on the trial in the presence of the party accused.

5. The court correctly ruled that if the offence proved and that described in the complaint corresponded, and no other transaction was proved, there was a presumption from which the jury might infer that they were the same.

6. In the case of a complaint charging a single sale as the offence, the precise day alleged is immaterial, and proof of the offence on a different day is no legal variance. Commonwealth v. Kelly, 10 Cush. 69. Commonwealth v. Dillane, 1 Gray, 483.

7. The court properly ruled, that the government might introduce other evidence to the jury in addition to the record, for the purpose of showing more distinctly for what act or offence he was actually tried and convicted in the police court, and to satisfy the jury that the sale testified to before them was the same sale of which the defendant was convicted in the police court.

8. The quantity of liquor sold need not be proved to correspond precisely with that alleged in the complaint.

The exceptions taken are therefore overruled, as well as the motion in arrest of judgment.