Commonwealth v. Stow

1 Mass. 54 | Mass. | 1804

The Court

(Dana, C. J., Strong, Sedgwick, and Thacher, justices,) ruled that the objection was fatal, and that such an allegation, viz., “ in the words and figures following,” required a precise recital, the same as if the tenor had been alleged.

* The defendant consented to waive all exceptions on [ * 56 J account of the variance, and by direction of the Court his waiver was reduced to writing, signed by him, and filed in the case.

In this case, after proving that the certificates were made by the defendant, and that the persons certificated were inhabitants of Montgomery, it became a question whether it was not incumbent on the defendant to prove that the certificates were true; i. e. that the persons were Baptists, and belonged to the society incorporated by the act mentioned in the indictment.

For the defendant, it was insisted, that in this, as in all cases, the burden of proof is on the prosecutor; the indictment alleges that the certificates were false; it is the duty of the prosecutor to prove them false; as much so as in a charge of forgery, in which it was never contended that the defendant was bound to prove that the instrument alleged to have been forged was in fact genuine.

For the prosecution, it was said that to require this proof on the part of the government, was in effect requiring proof of a negative, which is contrary to the rules of law, as well as the dictates of common sense; that the two facts proved were all that were capable of positive proof; that the legal presumption is, that every person belongs to the standing religious order or denomination in the town in which he resides, and is taxable there accordingly; that this presumption may, however, be repelled by contrary evidence, but this is to come from the person claiming the exemption, or, as in the present case, from the person who undertakes to certify it; that the proof now insisted on is, that government shall prove the certificated persons were not Baptists, and had not joined the society; which is absurd.'

The Court seemed to think that they ought to presume the certificates were true, until the government proved them to be false.

[ * 57 ] * Evidence was then produced that the certificated persons did not attend the religious meetings of the Baptists; which, as to some of them, was testified by the deacon of the church, who said he had never seen them there, and did not know of their attending those meetings.

Upon which the Court said that in a case of this nature it was impossible for government to produce any thing more than such kind of negative evidence of the fact; which having done, it lay upon the defendant to prove the affirmative, viz., that the certificates were true.

Some of the certificates stated that the person belonged to the society, (of which the defendant was teacher,) and that he did frequently and usually, when able, attend with the society in their meetings for religious worship; others of the certificates mentioned nothing about frequent and usual attendance, but only that he had become a member of the society, or had joined the society.

The Attorney-General, in addressing the jury, endeavored to convince them that those of the certificates which contained the clause of frequent and usual attendance in the meetings of the society for religious worship, must have been, within the knowledge of the defendant, false; and, therefore, that as to those, he was-guilty of a breach of the act of March 4,1800, (stat. 1799, c. 87, § 4,) providing for public worship and other purposes therein mentioned. But he was interrupted by the counsel for the defendant, who insisted that as the indictment charged the fraud to have been committed under the pretext of the act aforesaid, and' no act being mentioned or referred to in the indictment but the act for incorporating this particular society, he ought not to be permitted to argue as to the operation of any other act.

Strong, J.,

who charged the jury, said that it was in- [ * 58 ] cumbent upon the government to prove, first, * that the certificates were false; secondly, that the defendant knew them to be so at the time of making them, and, thirdly. that they were made with intention to defraud ^(a) ; and he said he was authorized to say that the Court were unanimously of opinion that the jury in their inquiry as to the guilt of the defendant must confine themselves to the intent to defraud undet the statute stated in the indictment; and that they would not inquire whether the defendant had been guilty of the breach of any other statute.

The jury acquitted the defendant.

After the verdict was given, the Chief Justice observed, and requested that it might be particularly noticed, that the Court had not given any opinion as to the sufficiency of the certificates to exempt the persons therein named from the payment of taxes for the support of religious worship in Montgomery.

(a) Is not the third an inference of law from the two former ?