Commonwealth v. McCanCommonwealth v. McCan
- Reporters:
- , , ,
- Before:
- Rugg
It was charged in this indictment that the defendant on February 11, 1931, committed an assault on a female child under sixteen years of age “with ... intent . . . unlawfully and carnally to know and abuse” her arid then and there “did unlawfully and carnally know and abuse” her. When the case came on for trial by jury, the defendant was not represented by counsel but the assistant district attorney directed the attention of the judge to the fact that on February 12, 1931, the defendant, after trial in the Municipal Court of the City of Boston, had been found guilty and sentenced to a term in the house of correction upon a complaint charging that on February 11, 1931, the defendant “did make an indecent assault” upon the same female child and “did then and there beat, bruise, wound and evil treat” her, such complaint growing out of the same transaction as that set forth in the indictment. Thereupon, a plea in bar was drafted for the defendant, so that his rights might be protected, by the assistant district attorney, and it was -filed by the defendant. The plea was overruled. The defendant thereupon pleaded not guilty, and was tried and found guilty on the indictment. The evidence was plenary to support the full felony charged in the indictment, even to the extent of violent overpowering of the resistance of the child. Sentence to the State prison for a term of not less than five, nor more than seven, years was imposed; but stay of execution was ordered and with consent of the defendant the question of law raised by the plea in bar was reported for determination by this court.
The question thus reported is whether as matter of law the complaint, conviction and sentence in the Municipal Court were a bar to this indictment.
*201The principle involved in this question is that ancient, fundamental maxim embedded in the criminal jurisprudence of.the common law that no person shall be tried twice for the same offence. Stated in other words pertinent to the plea here interposed, that maxim is that, where one has been convicted and punished by a court of competent jurisdiction, all other proceedings for the same offence are barred to the end that the defendant shall not be punished again for the same matter. That maxim is embodied in art. 5 of the Amendments to the Constitution of the United States and in the constitutions of many other States. In this Commonwealth it is jealously guarded as an important principle of individual safety and personal right. The difficulty lies in the application of that principle to the facts here disclosed. To determine the availability of that maxim in behalf of any defendant requires the ‘consideration of two factors: (1) whether the party pleading it has in truth theretofore been put in jeopardy, and (2) whether, if that be established, it can rightly be said to have been for the same offence. Commonwealth v. Roby, 12 Pick. 496, 502.
It is not open to debate that the defendant was put in jeopardy upon the complaint in the Municipal Court with respect to the crime of assault and battery.
The main inquiry, therefore, is whether the defendant has been tried before for the same offence as that here charged. The complaint in the Municipal Court charged a simple misdemeanor. No provision of the common law or of the statutes attaches a higher grade of offence to the words of aggravation charging that the assault and battery were indecent in nature. It was in effect a charge of assault and battery: Commonwealth v. Barlow, 4 Mass. 439. Commonwealth v. Randall, 4 Gray, 36. Commonwealth v. Fischblatt, 4 Met. 354. Commonwealth v. White, 110 Mass. 407. Commonwealth v. Hagenlock, 140 Mass. 125. Attorney General v. Macpherson, L. R. 3 P. C. 268, 281. The Municipal Court, therefore, had full jurisdiction to try the offence charged in the complaint and to impose the sentence of imprisonment in the house of correction for one year. St. *2021893, c. 396, § 36; St. 1911, c. 176, § 1; St. 1918, c. 257, § 420, now embodied in
The present indictment, on the contrary, charges a felony of high degree, the maximum punishment permissible therefor being imprisonment in the State prison for life.
Doubtless an assault is involved as subsidiary and incidental to rape, and an indictment for rape charges substantially and formally an assault and battery; and, under *203our present statutes, upon an indictment for rape a defendant, if the proof falls short of the charge of the felony, may be found guilty of simple assault and battery. Commonwealth v. Drum, 19 Pick. 479. Commonwealth v. Dean, 109 Mass. 349, 351.
We think that, in principle, the case at bar is concluded against the sufficiency of the plea by the luminous and exhaustive discussion by Chief Justice Shaw in Commonwealth v. Roby, 12 Pick. 496. That need not be repeated or summarized. The reference in that opinion to St. 1805, c. 88, some words of which have long since been repealed, Rev. Sts. c. 137, § 11, and note, does not impair its pertinency. See now
Whether the circumstances disclosed in the case at bar constitute a double jeopardy has been discussed in courts of other jurisdictions. In Diaz v. United States, 223 U. S. 442, at page 449, (referring to the justice of the peace under the Philippine law) it was stated as a general proposition that that magistrate, “although possessed of jurisdiction to try the accused for assault and battery, was without jurisdiction to try him for homicide; and, of course, the jeopardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction. All that could be claimed for that jeopardy was that it protected the accused from being again prosecuted for the assault and battery, and therefore required that the latter be not treated as included, as a lesser offense, in the charge of homicide . . . .” In Regina v. Miles, 24 Q. B. D. 423, 433, at page 434, occur words peculiarly apt to the case at bar by Hawkins, J. (of whom Mr. Justice Holmes remarked, in adopting another statement from his judgment in the Miles case as applicable in United States v. Oppenheimer, 242 U. S. 85, 88, that he was “a judge of great experience in the criminal law”): *205“a conviction for a common assault could not be pleaded in bar to an indictment for rape . . . for the essence of the crime of rape is a felonious assault by penetration of the person of the prosecutrix, which justices [of a court of summary jurisdiction] have no jurisdiction to adjudicate upon, and although it is quite true that, on a charge of common assault, evidence may be given of circumstances which, if true, would constitute a rape, and true also that the justices must form, in their own minds an opinion as to the credibility of that evidence with a view to determining whether their jurisdiction to deal with the matter has been ousted or not, and true also that if they disbelieve that evidence they may nevertheless believe that an assault, though not one of the particular character constituting a rape, has been committed, and convict the person charged accordingly .... Their conviction, nevertheless, would be no bar to an indictment for rape, for though incidentally they might be obliged to consider the evidence in order to determine whether they had jurisdiction over the charge before them, they would have no jurisdiction whatever to adjudicate upon the offence of rape, and their disbelief of the evidence would have no greater effect upon the charge of rape than if they had simply refused to commit for trial upon it, in which case nobody would question that an indictment might be presented by anybody who was dissatisfied with the justices’ refusal.” To the same exact point is People v. Saunders, 4 Parker Cr. Rep. 196. The principle was succinctly stated in People v. Townsend, 214 Mich. 267, 275, as follows: “A conviction in an inferior court of a misdemeanor does not constitute former jeopardy so as to bar subsequent prosecution for a felony arising out of the same transaction. The felony here charged being beyond the jurisdiction of the inferior court, and not included in any sense within the charge there laid, the defense of former jeopardy fails.” The great weight of authority is to the same effect. Without attempting an exhaustive collection, the following cases are cited as illustrative of the general tendency of judicial decision: State v. Nichols, 38 Ark. 550; Severin v. People, 37 Ill. 414; State v. Hattabough, 66 Ind. *206223, 228-229; State v. Garcia, 198 Iowa, 744, 746; compare State v. Sampson, 157 Iowa, 257; Reddy v. Commonwealth, 97 Ky. 784, 788; State v. Littlefield, 70 Maine, 452; Huffman v. State, 84 Miss. 479; Crowley v. State, 94 Ohio St. 88; State v. Caddy, 15 S. Dak. 167; Bowman v. State, 160 Tenn. 305; White v. State, 9 Tex. App. 390; Murphy v. Commonwealth, 23 Grat. 960; Regina v. Morris, L. R. 1 C. C. 90. There are these contrary decisions: Storrs v. State, 129 Ala. 101; Sanford v. State, 75 Fla. 393; compare, however, Boswell v. State, 20 Fla. 869; People v. McDaniels, 137 Cal. 192; Bell v. State, 103 Ga. 397; State v. Hatcher, 136 Mo. 641, 644; State v. Cooper, 1 Green, 361, 371.
We think that on principle a defendant in these circumstances ought not to escape punishment for the grave offence with which he was charged and has been found guilty. To reach that result does not impair the essential protection against double trial for the same offence. The assault of which the defendant was earlier convicted was no essential part of the high felony here charged, but merely an incident. The two crimes were separate and distinct.
The conclusion is that, by force of our own decisions, on principle, and on the weight of authority elsewhere, the plea was rightly overruled.
Verdict to stand.