Commonwealth v. Sullivan

150 Mass. 315 | Mass. | 1889

Holmes, J.

The Pub. Sts. c. 100, § 18, were amended by the St. of 1889, c. 114, so as to make the punishment more severe. By the St. of 1889, c. 268, which was enacted and went into operation on April 18, the same day that chapter 114 went into operation, it was provided that the amendment should not apply to prior offences. It is unnecessary to consider whether, if, as we believe is the fact, chapter 268 was passed after the first minute of April 18, it would or would not preserve the defendant’s liability. For by the Pub. Sts. c. 3, § 3, cl. 2, “ The repeal of an act shall not affect any punishment, penalty, or forfeiture incurred before the repeal takes effect, or any suit, prosecution, or proceeding pending at the time of the repeal, for an offence committed, or for the recovery of a penalty or forfeiture incurred, under the act repealed.” The defendant committed her offence, and this proceeding was pending, before the St. of 1889, c. 114, took effect.

The other exceptions are not much pressed. Selling intoxicating liquors may be evidence of the offence of maintaining a tenement used for the illegal keeping and sale of such liquor, but is not the same offence, and a person may be guilty of the former without being guilty of the latter. Therefore an acquittal of the latter is not a bar to a prosecution for the former, even if it appears that the sale now relied on was given in evidence in the prosecution for maintaining the tenement. Morey v. Commonwealth, 108 Mass. 433, 435, and cases cited.

The defendant having testified, the record of her conviction of a crime was admissible to affect her credibility. Pub. Sts. c. 169, § 19. By offering herself as a witness, she submitted to cross-examination, and therefore could be asked questions tending to identify her as the person named in the record. Commonwealth v. Morgan, 107 Mass. 199, 205. Root v. Hamilton, 105 Mass. 22. Exceptions overruled.