Commonwealth v. Foynes

126 Mass. 267 | Mass. | 1879

Soule, J.

It is well established in this Commonwealth that the copies sent up from a Police Court or a justice of the peace to the appellate court, in case of appeal by a defendant in criminal proceedings, may be amended at any time before the case has been submitted to the jury in the appellate court. Commonwealth v. Phillips, 11 Pick. 28. Commonwealth v. Doty, 2 Met. 18. Commonwealth v. Magoun, 14 Gray, 398. It is equally well settled that the trial in the appellate court must be on the original allegation of offence, and for the same offence for which the defendant was tried in the court appealed from. A conviction will not be sustained when it appears that the certified copy charges the offence to have been committed on a different day from that charged in the original complaint. Commonwealth v. Phelps, 11 Gray, 72. A complaint for unlawfully selling intoxicating liquor to a person unknown, on which the defendant was convicted before a lower court on proof of a sale to one person, is not supported at the trial on appeal by proof of a sale to a different person. Commonwealth v. Blood, 4 Gray, 31. An amendment of the certified copy of the complaint changing the allegation of the time of committing the offence, allowed after a conviction in the appellate court, entitles the defendant to a new trial. Commonwealth v. Dressel, 110 Mass. 102.

The defendant in the case at bar was convicted on a complaint, as the certified copy showed, which was signed and sworn to by William Foynes. This certified copy was afterward amended so that it appeared that the original complaint was signed and sworn to by William Stone. On that complaint the defendant was not tried in the Superior Court. If he were sentenced upon it, he would be sentenced on a different complaint from that on which he had been tried in the appellate court. The exceptions must therefore be sustained, and there must be a new trial on the complaint as originally signed and sworn to. Commonwealth v. Doty, 2 Met. 18. Commonwealth v. Dressel, above cited.

Exceptions sustained.