102 Mass. 148 | Mass. | 1869
1. An offence having no essential connection with the place in which it is committed, like a common assault or a simple larceny, though charged to have been committed in a particular town, may be proved to have been committed anywhere within the county. Commonwealth v. Tolliver, 8 Gray, 386. Commonwealth v. Lavery, 101 Mass. 207. But in an indictment for an offence in its nature local, as in the cases of larceny in a building, burglary, arson, desecrating and disfiguring a burying ground, striking in a church yard, or nuisance in a highway, the allegation of place is a necessary part of the description of the offence, and must be proved as laid. Commonwealth v. Wellington, 7 Allen, 302, and authorities cited. People v. Slater, 5 Hill 401. 2 Gabbett Crim. Law, 213. It was therefore rightly ruled
But the position of the defendant, that the line between the two towns could only be proved by a record of perambulations by the selectmen, cannot be sustained. Selectmen have no authority to change the boundaries or to adjudicate upon the limits of towns, but only to ascertain existing lines and renew old marks and monuments. Their perambulations are competent and strong evidence of the location of the lines, but they are not conclusive. Gen. Sts. c. 18, § 3. Freeman v. Kenney, 15 Pick. 44. Putnam v. Bond, 100 Mass. 62. If their record of perambulations were produced, and not sought to be impeached for mistake or controlled by other evidence, oral testimony would be competent, as in the case of applying a deed or other written instrument, to show the actual position of the line upon the land. Hayden, who was acquainted with the dividing line between Northampton and Williamsburgh, having lived near it, and run it when measuring his own land, was therefore rightly permitted to testify on which side of the line the tenement in question was situated.
2. The testimony of the defendant that she had paid money to the collector of Williamsburgh for taxes assessed in that town on this tenement as her husband’s property was, taken by itself, incompetent; and its admissibility was only sought to be justified in connection with her further offer “ to show that said tax was assessed against her husband in Williamsburgh,” which must fairly be taken to mean by the best evidence of that fact, namely, the records of the assessors.
The book of assessments of taxes, made and kept by the assessors in the performance of their official duty, in accordance with the requirements of the Gen. Sts. c. 11, §§ 33, 34, is doubtless competent evidence of the facts therein stated in all cases relating to the assessment or collection of the tax. The King v. King, 2 T. R. 234. Ronkendorff v. Taylor, 4 Pet. 349. How far it is admissible for any other purpose, and in controversies
The taxations and surveys which were admitted in evidence of the value of lands in Bullen v. Michel, 2 Price, 399; S. C. 4 Dow, 297; were very ancient documents, and were held competent on that ground. In Doe v. Cartwright, Ry. & Mood. 62; S. C. 1 C. & P. 218; Lord Chief Justice Abbott admitted the land tax collector’s book, containing an entry by him, stating the assessment of a tax on a certain house to a certain person .and his payment thereof, to show that he then occupied the house, upon the sole ground that the et-.Lry of payment was an entry against the interest of the collector. In Doe v. Seaton, 2 Ad. & El. 171; S. C. 4 Nev. & Man. 81; assessments more than sixty years old to a certain name were admitted for a like purpose, only in connection with the steward’s book showing allowances to the tenant for corresponding charges, and other evidence, and between parties both claiming through the person to whom the book belonged at that time.
In Doe v. Arkwright, 5 C. & P. 575; S. C. 2 Ad. & El. 182 note; 1 Nev. & Man. 731; Mr. Justice Parke (afterwards Baron Parke and Lord Wensleydale) expressed the opinion at nisiprius, that a land tax assessment was not evidence of seisin in the person assessed; and at the argument in banc said : “ The only ground of its admissibility seems to be the duty incumbent on the assessors to ascertain the occupier and charge him.” “ I thought them no evidence of the title. At any rate they would only show the opinion of the parish officers.” . A.nd Lord Denman said: “ It would be indifferent to them from whom they got the amount of tax, so that it was raised.” The court of queen’s bench, without passing upon the general question, held that the books offered in that case were no evidence of seisin, because it was shown to have been a common practice to retain the name of a deceased proprieto* on them until the estate was sold to a different family.
In Boston v. Weymouth, 4 Cush. 538, upon the question of the settlement of a pauper, and to show that he paid no taxes in a town in a certain year, an entry upon the books of the selectmen in favor of the collector for the discount of such taxes was held to be admissible after the lapse of more than forty years and the death of all the town officers, because adverse to the interest of the town, and an ancient transaction. In Edson v. Munsell, 10 Allen, 557, the books of the assessors, showing an assessment of real estate to a guardian, were admitted in connection with a bond for the faithful performance of his trust, purporting to have been executed more than fifty years ago by the guardian, and produced by the register of probate, and with the register’s testimony that there was no other record or evidence of the appointment in the probate office, to show that the ward was under guardianship at the time of the assessment.
On the other hand, it was held by this court in Mead v. Boxborough, 11 Cush. 362, that the assessment of a man’s poll and personal property in one town was no evidence of his domicil
3. The conviction of the husband for keeping and maintaining this tenement as a nuisance in violation of the Gen. Sts. c. 87, §§ 6, 7, during a certain period, if admissible at all in this case, was not inconsistent with the prosecution and conviction of the wife, either jointly with him, or severally, for a like offence, upon proof that she, during part of the same time and in the same tenement, and without his coercion, did the acts necessary to constitute guilt on her pare. Commonwealth v. Tryon, 99 Mass. 442.
4. The final ruling of the judge appears to have been made and reported solely in reference to the points taken by the defendant at the trial and already considered. The objection now raised that this ruling was imperfect in allowing the jury to convict the defendant upon proof that she merely used the tenement for the illegal sale and keeping of intoxicating liquors, without proof that she kept and maintained it within the meaning of the statute, cannot be considered as presented by the biL' of exceptions. Exceptions overruled.