Commonwealth v. Cain

102 Mass. 487

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Ames, J.

By the terms of the St. of 1861, c. 181, “two or more counts, describing different offences, may be set forth in the same complaint or indictment, depending upon the same facts or transactions; provided that the complaint or indictment shall contain an averment that the different counts therein' are different descriptions of the same act.” The meaning of this statute seems to be, that, if the prosecutor should desire to secure the advantage of presenting the same subject matter in several distinct forms, and describing the same act in several different ways, without being driven to his election on which he will rely, he may do so, on complying with the terms of the statute, and making it a matter of special averment in the complaint or indictment that the different counts are different descriptions of the same act. This proviso is undoubtedly intended for the benefit of the defendant, by informing him that charges, which taken literally appear to relate to distinct and separate offences, are substantially but one, and that there is but one act or transaction which is really the subject of trial. It was also intended to permit the same act to be variously described in different counts, which could not be united at common law without being liable to the objection of misjoinder.

The subject of the joinder of offences which are really distinct and separate continues to stand exactly as it did before that statute was enacted. There is no doubt that, within certain limits, different offences of the same nature may be stated in different counts of an indictment, when the same mode of trial applies and the same judgment is to be given. Josslyn v. Commonwealth, 6 Met. 236. It certainly has been common in practice, in this Commonwealth, to include several distinct substantive offences in the same indictment, where they are of the same general nature, and where the mode of trial and nature of the punishment ara the same. And this court has declared that it h sees no objection to this course, because it is always competent for the court to order, where there are several counts which might tend to perplex the defendant in his defence, that the prosecutor shall elect on which of the counts he will bring the defendant to trial, so as to exempt him from the vexation of meeting multifarious charges at one and the same time.” Carlton v. Commonwealth, 5 Met. 532. Booth v. Commonwealth, Ib. 535. 1 Archb. Crim. Pract. & Plead. (7th Am. ed.) 310, and note. It can hardly be said that the three counts in this indictment are different descriptions of the same act. The burning of the dwelling-house is not the same act as the burning of the bam. It is difficult to see why those two counts, at least, might not have been joined in the same indictment without the averment required by the St. of 1861, c. 181, or how as to them that averment could be made consistently with truth.

But the objection, founded upon the want of the averment provided for by the statute in question, is wholly removed by the nolle prosequi of the first and second counts of the indictment. This discontinuance as to those two counts was a matter entirely at the discretion of the prosecuting officer, at that stage of the case ; and although not, strictly speaking, an amendment of the indictment, its effect for the purposes of the trial was to leave the defendant as if the indictment contained the third count only. Commonwealth v. O’Connell, 12 Allen, 451. Commonwealth v. Tuck, 20 Pick. 356. Exceptions overruled.