200 Mass. 73 | Mass. | 1908
In the case at bar the defendant was indicted for committing two acts of perjury at the trial of a criminal case in the First District Court of Eastern Worcester.
That the two counts in the indictment before us are to be taken to charge two offenses, see Benson v. Commonwealth, 158 Mass. 164; Commonwealth v. Lowrey, 159 Mass. 62. There is no allegation that they are different descriptions of the same act, as in Commonwealth v. Flagg, 135 Mass. 545.
It is not stated in terms in the bill of exceptions now before us that the two offenses stated above were on trial in the District Court when the perjury now in question was committed. But what is stated in the bill of exceptions is tantamount to that. It is stated there that the perjury charged in the first count of the indictment in the case at bar was committed in a proceeding in the course of justice before the District Court of Eastern Worcester “on certain issues” then on trial between the Commonwealth and Carrie M. Sessions, where “ it became and was material to said issues whether said Sessions did assault Samuel Hollander and throw a stone in a public way of said Westborough ”; and that the perjury charged in the second count of the indictment in the case at bar was committed in a proceeding in the cause of justice before the same court “ on an issue ” then on trial where “ it became and was material to said issue whether said Carrie M. Sessions did, on or about the first day of September, one thousand nine hundred and seven, at said Westborough, hit one Samuel Hollander with a stone thrown by said Sessions.”
It is also stated in the bill of exceptions that the government introduced evidence tending to prove all the necessary allegations contained in either count.
At the close of the evidence the prisoner asked for the following ruling: “ That it was of no importance for them to consider whether or not said Sessions was standing in the highway or in the pound at the time of the alleged throwing of said stone or stones; and that it was not material to the issue presented in either count of said indictment where said Sessions was standing at the time of the alleged throwing of said stone or stones.”
That is also true of the second part of this ruling asked for by the prisoner. The second part of the ruling is not a request for a ruling as to each count that the fact that the aforesaid Carrie stood in the road was of no importance. The ruling asked for was that this fact was not material to the issue presented “ in either count.” If that fact was material to one of the two counts the ruling was rightly refused.
The only argument put forward in support of the ruling asked for so far as the first count is concerned is that the ruling asked for deals with the fact “ whether or not said Sessions was standing in the highway or in-the pound at the alleged throwing of the stone or stones,” while the allegation of the indictment is that it was material to the issues on trial to determine “ whether -said Sessions did . . . throw a stone in a public way.” There is nothing in this bill of exceptions to show that the two did not mean the same thing in the trial of the indictment in the case at bar.
Exceptions overruled.
