Commonwealth v. Lowrey, 159 Mass. 62

Commonwealth v. Lowrey

159 Mass. 62 | Mass. | 1893

Barker, J.

The defendant was charged, by an indictment in three counts, with offences alleged to have been committed on the same day and in the same place, and was found guilty on the first count, and not guilty of the residue. His motion in arrest of judgment is founded upon the contention that the counts charge but one offence, and that the verdict of not guilty upon the second count is repugnant to the verdict of guilty upon the first.

But there is no legal conclusion from the record that the counts were for one and the same offence; on the contrary, they may have been for distinct offences, in which case the verdicts were not repugnant, and would warrant judgment in favor of the government. See Crowley v. Commonwealth, 11 Met. 575, 579. And, as stated in the same decision, it must have been known to the judge before whom the cause was tried whether the offences charged were distinct, and because the record does not show this, this court cannot say that in law the record will not justify sentence. Such a record is to be construed in favor *64of the legality of the proceedings, by refusing to draw from it any unnecessary presumption impugning their validity; and this is what was done in the case of Stevens v. Commonwealth, 4 Met. 360, 364, relied on by the defendant, as well as in Carlton v. Commonwealth, 5 Met. 532, and Crowley v. Commonwealth, 11 Met. 575. See also Benson v. Commonwealth, 158 Mass. 164.

Judgment affirmed.