Commonwealth v. Ismahl

134 Mass. 201, 1883 Mass. LEXIS 262

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1883
• Status: Published

Opinion

Devens, J.

The exceptions taken by the defendant are well settled by decisions, the authority of which we have no disposition to question.

There was no misjoinder of counts; as the offences charged therein were of the same nature, they might properly be included in one indictment. Commonwealth v. Kimball, 7 Gray, 328. Commonwealth v. Davenport, 2 Allen, 299.

Nor was it necessary to aver that the different counts were different descriptions of the same act. The St. of 1861, o. 181, (Pub. Sts. c. 213, § 18,) was not intended to impose new restrictions upon the criminal pleader, but to enable him to join several counts describing different offences which could not be joined at common law. Commonwealth v. O'Connell, 12 Allen, 451. Commonwealth v. Adams, 127 Mass. 15.

Even if the evidence disclosed but one series of facts or transactions, and both counts had relation to the same house and time, and the same acts done in said house, the defendant could not of right demand that the prosecuting officer should elect on which of the two counts he would go to the jury. Even if the presiding judge might properly in some cases confine the public prosecutor to a single count, it is a matter within his discretion, and the exercise of it cannot be here reviewed. Commonwealth v. Slate, 11 Gray, 60. If evidence had been admitted upon one count which legally could not be applied to the other, attention should have been called to it by a request for an instruction to that effect. Every right of the defendant was preserved when the jury, having applied the evidence to one count, and having found that it justified them in convicting the defendant thereon, were directed to treat it as having exhausted its force, and to return a verdict of not guilty upon the other Commonwealth v. Edds, 14 Gray, 406. Exceptions overruled.