Batchelder v. Commonwealth

109 Mass. 361

Opinion

Wells, J.

The plaintiff in error was convicted in the municipal court upon his plea of “ not guilty.” He appealed to tin superior court, and there, failing to prosecute his appeal, was defaulted. He then stood liable to sentence upon his conviction, in the same manner as if he had been convicted in that court. Gen. Sts. e. 173, § 5.

In the municipal court he was hable to sentence both of fine and imprisonment. If that court, in its discretion, upon proof that he had not before been convicted of a similar offence, imposed a fine only, the power of the superior court on appeal to impose both fine and imprisonment would not be controlled thereby.

Section 1 of the St. of 1866, <?. 280, does not treat the omission of the offender to prove that he has not before been convicted, as a confession, or as evidence against him of such former conviction. It is not a provision for increased punishment of a second offence; but for mitigation of sentence.

“ Intoxicating liquors ” is a sufficient designation of that, the sale and keeping for sale of which is made illegal by the statute; and it is not necessary to allege or prove that the liquor was also spirituous or distilled. Commonwealth v. Timothy, 8 Gray, 480. Commonwealth v. Ryan, 9 Gray, 137.

It is unnecessary to consider the question of the right of counsel to enter a plea of “ guilty ” in the absence of the accused ; inasmuch as the record shows that the court proceeded to award sentence against him upon his default, and conviction in the municipal court, and not upon the plea.

There appearing to be no error in the record, the judgment and sentence awarded by the superior court are

Affirmed.