Commonwealth v. Giles

67 Mass. 466

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1854
• Status: Published

Opinion

Merrick, J.

The evidence of sales of fermented liquors, though objected to, was properly allowed to be given on the trial. The assumption of the defendant, that the accusation against him is limited, by the description of it in the indictment, to a charge of unlawful dealing in those liquors only which are spirituous, as well as intoxicating, is manifestly erroneous. Beside the general allegation that he was a common seller of spirituous and intoxicating liquors, it is specially averred that he sold fermented liquors, in quantities particularly mentioned,- on three different occasions, to as many different individuals. These last were material averments, because it is expressly declared by the statute that three such sales shall constitute a violation of that particular provision which prohibits all unauthorized persons from being common sellers of either spirituous or intoxicating liquors. St. 1852, c. 322, § 12. Proof therefore of the truth of these averments was-proof of the guilt of the defendant, and no competent evidence of the facts so averred could be rightly excluded,

But another objection of the defendant is of more importance and of greater weight. Under an order of the court, he had been furnished before the trial, by the counsel for the government, with a list specifying the names of the persons to whom the sales, which would be relied upon in support of the indictment, had been made. Yet, upon the trial, the government was permitted, against objection, to adduce proof of sales which were neither alleged in the indictment, nor indicated in the specification.

It is now a general rule, perfectly well established, that in all legal proceedings, civil and criminal, bills of particulars or specifications of facts may and will be ordered by the court whenever it is satisfied that there is danger that otherwise a party may be deprived of his rights, or that justice cannot be done. Whether such an order shall be made is a question within the discretion of the court where the cause in which it is asked for is pending, to be judged of and determined upon the peculiar facts and circumstances attending it.

* We are inclined to think that such a determination is final in the court where it is made, and is not open to reexamination or revision. But whether this be so or not, when it is once made, it concludes the rights of all parties who are to be affected by it; and he, who has furnished a bill of particulars under it, must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration. Commonwealth v Smelling, 15 Pick. 321.

The evidence, therefore, of sales not mentioned in the list which was furnished to the defendant in the present case, was inadmissible, and should have been rejected. The particular purpose for which it was allowed to be adduced, scarcely, if at all, limiting or diminishing its general force and effect, constituted no exception to the general rule, and afforded no sufficient or legal reason for disregarding it. On the contrary, it seems to be particularly fit and necessary that the rule should have been supported and enforced, because this evidence, of which the defendant was impliedly assured that nothing should be offered, tended directly and strongly to his conviction of the offence of which he was accused. His general occupation, employment and business was the very fact in issue. And that fact could be the more easily established if the government were allowed, in •the indirect manner proposed, to avail itself of evidence of the “ place of delivery,” to which the statute gives an artificial and peculiar importance and efficacy. St. 1852, c. 322, § 12.

As this evidence was material, and the defendant may have been injuriously affected by it, a new tidal must be granted.

Exceptions sustained.

In the case of Commonwealth v. Elwell, (ante, 463,) to the point (which was not decided in that case) that the defendant was entitled, of right, to a specification of the acts of sale relied on in support of the prosecution, were cited; Greenl. Ev. § 66; Rose. Crim. Ev. (2d ed.) 218, 275, 405, 425, 527; 1 Russ. on Crimes, (7th Amer. ed.) 184, 330; 6 Dane Ab. 737; Lambert v. The People, 9 Cow. 586; Commonwealth v. Pray, 13 Pick. 363; Commonwealth v. Davis, 11 Pick. 434; Commonwealth v. Snelling, 15 Pick. 321.