261 Mass. 294 | Mass. | 1927
The defendant was indicted by the grand jury for the county of Middlesex on the first Monday of April, 1927, for the larceny of certain personal property, at Cambridge, within that county. On April 8,1927, the defendant was arraigned, had the indictment read to him, pleaded not guilty and put himself upon the country. A jury was empanelled on April 20, 1927, for the trial of the indictment so found.
During the trial the identity of certain dolls was in issue, both to prove the defendant guilty of larceny under the indictment of these specific articles, and as a connecting fink tending to show that the defendant took certain other articles described in the indictment as stolen by him. The defendant contended that the dollswhich were seized at his residence in Boston, which the Commonwealth contended were dolls stolen from Arthur H. Whitney at Watertown in the county of Middlesex, were his own and were made by him. The Commonwealth summoned Carrie E. Atteaux of Brookline in the county of Norfolk, a maker of dolls. In response thereto a physician presented a certificate stating that Mrs. Atteaux was under treatment for paralysis of the face; that it would be impossible for her to come to court, but that she could talk if she were interviewed in her home. The Commonwealth thereupon moved that the court and jury be taken to the home of Mrs. Atteaux, and the motion, against the objection of the defendant, was granted.
The defendant had summoned one Arthur H. Whitney of Watertown in the county of Middlesex, the owner of the house in which the alleged larceny had occurred. A physician, under the impression that Whitney was summoned by the Commonwealth, sent a certificate to the district attorney, stating in substance that Whitney had undergone a serious operation and was only recently permitted to leave
Thereafter the judge, the. jury, the clerk and the deputy sheriffs convened at the residence of Mrs. Atteaux in Brook-line in the county of Norfolk. Mrs. Atteaux was sitting up when the court and jury arrived. She was sworn as a witness for the Commonwealth and testified that she made the dolls in question; and she positively identified them. She also testified in cross-examination by the defendant. The court then adjourned to the house of Whitney in Watertown. Whitney was sworn and examined by the Commonwealth, and cross-examined by the defendant. From the residence of Whitney the court returned to the court house at Cambridge, where the trial was resumed. The defendant was found guilty by the jury on the first count of the larceny of a pin, and on the fourth count of the larceny of two dolls; and not guilty on the other counts of the indictment.
At the close of the evidence, the defendant moved (1) to strike out the testimony of Carrie E. Atteaux; (2) to strike out the testimony of Arthur H. Whitney; (3) for a mistrial; and (4) in arrest of judgment. These motions were based substantially on the same reasons, and were denied. The question which underlies all these motions is, Has a judge of the Superior Court, after an indictment of a defendant, after his arraignment and plea, and after the empanelling of the jury to try the issues, authority to adjourn the trial to a place within the county other than to another shire town, or to any place whatsoever in any county other than the county where the offence described in the indictment is alleged to have been committed?
At common law the indictment for a crime must be found in the county where the crime occurred; and the issue must
It is plain that, when the judge, the district attorney of Middlesex County, the jurors drawn for the county of Middlesex, and the deputy sheriff directed to assist the courts in Middlesex County, convened in Brookline, and later in Watertown, there wias no court functioning at a place established by law for the judicial administration of justice; there was no clerk to record the doings of the court; there were no officers present with authority to enforce the orders of the court; and there were no jurors of the county to decide the issues to be presented by the indictment. In a word, there was present at the house of Mrs. Atteaux, a judge, and no other person legally qualified to act as an officer of the Superior Court sitting in the county of Norfolk for the transaction of criminal business. The time and place prescribed by G. L. c. 212, § 14, for the civil and criminal sittings of the Superior Court for the county of Middlesex, as also for the county of Norfolk, are essential constituents for the organization of that court; and sittings cannot be held elsewhere, unless provision for sittings in other places is provided by statute. G. L. c. 34, § 3. G. L. c. 212, § 21. G. L. c. 220. St. 1927, c. 306. Greenwood v. Bradford, 128 Mass. 296. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137. Catheron v. County of Suffolk, 227 Mass. 598, 602. In re Allison, 13 Col. 525. Hobart v. Hobart, 45
The judge in the case at bar was without authority to adjourn the court from the place in Middlesex County prescribed by law to any place in another county or to a different place than that prescribed in Middlesex County, and the sittings held in Brookline and in Watertown were consequently null and void. It results that the entry must be
Verdict set aside.
Case to stand for trial.