Commonwealth v. Farrell

105 Mass. 189 | Mass. | 1870

Chapman, C. J.

1. In the former prosecution, the permission which was given to the defendant to withdraw his plea of not guilty and file a plea of misnomer in abatement, and the abatement of the indictment on that ground, relieved him from being put in jeopardy. Commonwealth v. Sholes, 13 Allen, 554. 1 Bishop Crim. Law, § 865. The proceedings in that case are therefore no bar to this prosecution for the same offence.

2. The complaint is for keeping a liquor nuisance on the 1st of July 1869 and on divers other days and times between that day and February 10, 1870. A single offence is thus charged; and, after a trial on the merits, no second prosecution could be maintained for the same offence daring the period named.

Specifications are ordered at the discretion of the court before which a cause is to be tried. They affect the proof and mode of trial, and not the indictment; they are not a part of the record, tad are not subject to demurrer, but are merely to give notice, and guard against surprise on the trial. Commonwealth v. Davis, 11 Pick. 432, 435.

When this cause was appealed from the municipal to the superior court, the specifications ordered to be filed in the municipal court to regulate its proceedings did not bind the judge of the superior court, and he had authority to permit the prosecuting officer to prove the alleged offence by any proper evidence. It was necessary to prove the same offence that was proved in the court below, but not necessary to prove it by the same evidence. It would be the duty of the judge to protect the defendant against surprise, by ordering a new specification, if he deemed it necessary. But none was moved for; and no objection was made to any of the evidence offered. And although the evidence offered did not relate to the times mentioned in the specification, yet, under the instructions given to the jury, they must have found the defendant guilty of the offence alleged in the complaint.

Exceptions overruled.