Commonwealth v. DugganCommonwealth v. Duggan
- Reporters:
- , ,
- Before:
- Rugg
This is a complaint for operating an automobile while under the influence of intoxicating liquor.
It is stated in the bill of exceptions that a complaint for the same offence was made against the defendant on March 9, 1925, and that he was on that day arraigned before the District Court and the case at his request was continued until April 1, 1925; that on April 1, 1925, he was tried and found guilty and sentenced, and appealed.
When the case came on for trial, but before the defendant was called to the bar in the Superior Court, he filed what is termed in the exceptions a “Motion to Quash.” It was averred in this motion by the defendant, after saving his rights under his plea of not guilty theretofore pleaded, that the complaint, after the arrest of the defendant, was altered *467by the clerk of the court at the request of a third person representing himself to be attorney for the defendant, so as to charge a second offence of operating a motor vehicle under the influence of liquor; that at the trial it developed that this person was not attorney for the defendant; whereupon the clerk, without the consent of the defendant and after the trial in the District Court, prepared a new complaint on which the finding of the judge was made. This motion was denied on the ground that it was filed too late. The defendant also filed what is termed a “Plea in Abatement,” at the same time saving his rights under the plea of not guilty theretofore pleaded. The only material facts set forth are those stated in the “Motion to Quash” (although there are set out in it also numerous irrelevant matters concerning one Votour), together with the further averment that the complaint dated March 9, 1925, which was amended and upon which the defendant was arrested and tried, “has been lost or destroyed, and has not been returned to this [the Superior] Court, and the complaint which is now before this [Superior] Court, is one upon which the defendant has not been tried, but one upon which he has nevertheless been found guilty.” The defendant also filed a paper entitled a “Plea in Bar,” wherein, after reserving his rights under his plea of not guilty, it was set up that he “was previously convicted and sentenced for the same offence as set forth in complaint dated- March ninth, 1925, as is now charged against him in complaint dated April 1st, 1925, and upon which he has been placed on trial.” It is stated in the record that a hearing was refused on each of these two last mentioned matters. In conjunction with the recital of these two pleas, it is stated that the defendant made an offer of proof of testimony by the clerk and the probation officer of the District Court in support of the facts set out in the two pleas, which the court excluded. We interpret this part of the exceptions to mean that the judge refused to hear oral testimony of the nature offered in support of the facts alleged in the pleas and that the defendant offered nothing beside oral testimony in support of them and that they were denied.
*468It is to be observed that in each of these papers filed by the defendant it is implied, if not expressly stated, that he had pleaded not guilty. A general plea admits the sufficiency of the complaint and is waiver of all matters in abatement. Lebowitch v. Commonwealth, 235 Mass. 357, 362, 363, and cases there collected. Commonwealth v. Leventhal, 236 Mass. 516, 523.
The case at bar does not fall within that rule but presents a different question. The copies of all papers of record in the Superior Court are before us under
The foundation of the jurisdiction of the Superior Court in a criminal case coming before it on appeal, is the complaint made in the District Court. The Superior Court can rightly try a defendant on such appeal only on the same complaint on which the defendant was tried in the District Court. The copy of the complaint may be amended, in order to make it conform to the original complaint, at any time before the case is submitted to the jury and in some cases even after verdict. But it must be the same complaint as that from which the appeal was taken. Commonwealth v. Foynes, 126 Mass. 267. Commonwealth v. Carney, 153 Mass. 444. Commonwealth v. LeClair, 147 Mass. 539. The conclusion that the defendant was not tried in the Superior Court on the same complaint on which he had been tried in the District Court is inevitable on comparison of the certification of the record of the District Court with the complaint on which the trial was had in the Superior Court. These both are matters of record in the Superior Court and are before us.
The defendant framed his motion to quash and plea in abatement on the theory that the occurrences in the District Court might be shown by paroi evidence even though the record of the District Court thereby might be contradicted. The complaint received in the District Court and action of the District Court thereon can be shown only by the record of the District Court. District courts are now courts of superior and general jurisdiction as to all matters within their jurisdiction and their records are entitled to all presumptions in their favor which attach to records of other courts.
No order is made touching the final disposition of the case because the record of the District Court or the copy of the complaint may be amended so as to render proper a trial of the defendant in the Superior Court. The plea in bar ought to have been overruled in the circumstances disclosed.
At the argument before this court the defendant filed a paper entitled “Motionfor Diminution of Bill of Exceptions.” This was irregular. The exceptions must be accepted as true. Exceptions cannot be allowed unless conformable to the truth.
The other questions argued are not likely to arise in the same way if the case should be tried again and need not be considered.
“ Motion for Diminution of Bill of Exceptions” denied.
Exceptions sustained.