Commonwealth v. Wermouth

174 Mass. 74 | Mass. | 1899

Morton, J.

The defendant pleaded in bar a former trial and acquittal of the same offence for which the complaint in this case was made. The Commonwealth replied, saying that there was no such record of a former acquittal as the defendant had alleged. The effect of the plea and replication was to put in issue the question whether the defendant formerly had been tried for keeping the dog which he was complained of in this case for keeping and had been acquitted. The plea alleged “ that the offence charged in said complaint (the former complaint) was the same offence as is charged in this complaint.” And the replication must be understood as traversing the issue thus tendered, and not merely as raising the question whether there was a record of an acquittal of keeping some dog.

The burden was on the defendant to show a former acquittal (Commonwealth v. Daley, 4 Gray, 209) ; and the verdict of the jury must be regarded as settling the matter and as requiring that the plea should be overruled.

The testimony of Bailey and Lovell was admissible. It was not incompetent because it tended to show that the defendant was keeping more dogs than he was charged with keeping. He could only be convicted under the complaint of keeping one dog.

There was testimony tending to show that on August 15 the defendant became the keeper of three dogs that were not licensed. Pub. Sts. c. 102, § 81, as we construe it, requires a person becoming the keeper after the first day of May of a dog not licensed to cause it to be registered, numbered, described, and licensed on becoming such keeper. The testimony tended to show that the defendant did not procure licenses till August 25, nine days after he received the dogs. Assuming -without deciding that he was entitled to a reasonable time after receiving them in which to procure licenses, we think that as matter of law this was an unreasonable delay, and that the instructions which were requested were therefore rightly refused. In Commonwealth v. Brimblecom, 4 Allen, 584, relied on by the defendant, it was decided that, as the law then stood, a person who did not become the keeper of a dog till after the 30th of April in one year was not required to have it licensed before the 30th of the next April, and St. 1867, c. 130, § 2, now incorporated in Pub. Sts. c. 102, § 81, probably was passed to remedy the defect that was thus shown to exist. The question now raised was not before the court in Commonwealth v. Coates, 169 Mass. 354, and was not considered. Exceptions overruled.