163 Mass. 226 | Mass. | 1895
1. The first motion to quash, on the ground that the indictment should not contain allegations of former convictions and sentences of the defendant with a view to proving that he was an habitual criminal was rightly overruled.
2. The second motion to quash, on the ground of a misjoinder of counts, has not been argued, although from a reference to it in the brief we infer that it is not waived. The indictment contains two counts, instead of four as assumed by the defendant, and the words “ against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided,” unnecessarily used in one place in each of the counts, and the words, “ And the jurors aforesaid for the Commonwealth of Massachusetts on their oath aforesaid do further present,” do not in this case denote the end of one count and the beginning of another. The decisions in Commonwealth v. Glover, 111 Mass. 395, 400, Commonwealth v. Cohen, 120 Mass. 198, and Commonwealth v. Chiovaro, 129 Mass. 489, hold that the unnecessary use of these words under circumstances like the present is not fatal to the indictment. It is obvious, upon examination of the indictment, that it was intended to charge the defendant in one count with the crime of breaking and entering a building with intent to commit the crime of larceny therein, and with having been twice convicted of crime, sentenced, and committed to prison for terms of not less than three years each, and to charge him in another count with an attempt to commit the same crime, and with having been in like manner previously convicted of crimes and sentenced. The meaning being obvious, unnecessary words may be rejected as surplusage.
3. The testimony of what the defendant said in answer to the question whether he was married or single was rightly admitted. The fact that the officer to whom he made the answer made a record of certain facts, including this answer, in accordance with a custom to make what may be called a descriptive list for possible future use when receiving a person into prison as a convict, does not affect the competency of the oral testimony. The entries do not constitute such a record as precludes paroi evidence of the facts stated in them. Exceptions overruled.