Commonwealth v. Gould

78 Mass. 171 | Mass. | 1858

Metcalf, J.

It seems clear to us that, as the first indictment was quashed on the defendant’s motion, he has no legal ground of exception to the refusal of the court to allow him afterwards to withdraw that motion. The court, in its discretion, might nave allowed the motion to be withdrawn; but leave to withdraw it was not a matter of right in the defendant; and the refusal of the court to exercise a discretionary power is not a subject of exception.

The refusal of the court to grant the defendant’s motion to withdraw his plea of not guilty to this second indictment, and plead a former acquittal, was a refusal to exercise a discretionary power, and not a power to the exercise of which the defendant had a legal right. But if we were now sitting in judgment on the question whether the discretionary power of the court was properly exercised in this instance, we could not hesitate to decide that it was, because the granting of the motion would have been of no avail to the defendant. The court knew all the grounds of the offered plea of former acquittal, which were these only : That the first indictment was quashed for the reason that there was a defective description of the mortal wound therein alleged to have been given to the deceased by the defendant; and that this second indictment was in all things, except in a more particular description of that wound, the same as the first. If the defendant had been tried on the first indictment and found not guilty by the jury, that acquittal would have been a bar to another indictment for the same offence, notwithstanding any defect in the form or in the substance of the first indictment. Rev. Sts. c. 123, § 4. But the effect of quashing an indictment is like that of a nol. pros, of it, or of its being adjudged bad on demurrer, or of an arrest of judgment for a defect therein, after a verdict of guilty has been returned; by neither of which is a defendant acquitted of the offence with which the indictment charged him, but is exempted only from liability on that indictment.

The plea of former acquittal is allowed and sustained on a maxim of the common law, that no one shall be brought into jeopardy more than once for the same offence. But when an original indictment is quashed, adjudged bad on demurrer, or when judgment thereon is arrested for a defect therein, it is held that the accused has not thereby been in jeopardy, within the meaning of that maxim. Commonwealth v. Wheeler, 2 Mass. 172. Commonwealth v. Roby, 12 Pick. 502. Rex v. Burridge, 3 P. W. 500, by Lord Hardwicke. 2 Hawk. c. 35. 2 Gabbett Crim. Law, 332. Archb. Crim. Pl. (13th ed.) 118 8p seq.

We need not express an opinion whether the first indictment was rightly quashed, that is, whether it was too defective to sustain a judgment against the defendant. Commonwealth v. Eastman, 1 Cush. 214. Commonwealth v. Davis, 11 Gray, 457. That question is not before us for decision. But we do not withhold our opinion, that after the second indictment was found and returned, it was useless to quash the first; for the defendant thereby gained no legal advantage. If the first had been left pending, it could not have been interposed to defeat the second, or to delay the trial of it. Commonwealth v. Drew, 3 Cush. 279. If the defendant, at an earlier day, had moved to withdraw his motion to quash the first indictment, we presume the court would have granted his motion.

Nor has the defendant suffered any legal harm from the refusal of the court to allow him to withdraw that motion, and reinstate the indictment which had been quashed for insufficiency Besides; if we deeméd that refusal to be wrong, it was, as be> fore said, a matter, not of right in the defendant, but of judicial discretion in another court, and not within our cognizance.

Exceptions overruled.