Commonwealth v. Lane

32 N.E. 655, 157 Mass. 462, 1892 Mass. LEXIS 104

• Court: Massachusetts Supreme Judicial Court
• Decided: December 5, 1892
• Status: Published

Opinion

Allen, J.

The indictment is for subornation of perjury, and charges that the defendant “ did unlawfully and wickedly solicit . . , Daniel F. Keane . . . falsely to depose, say, and give evidence upon his oath,” etc. The defendant contends that the indictment is bad, because it does not charge that he “ corruptly ” did the acts set forth. But, without now determining whether this objection would have been good if properly taken, it is not open on the motion to quash, because, if the indictment is defective, the defect is merely formal and should have been assigned specifically, under the rule laid down in Pub. Sts. c. 214, § 25. If it had been thus specifically assigned, the district attorney might have thought it better to wait till a new indictment could be found, before subjecting the Commonwealth to the expense of a trial on the merits. Under this statute, if a defendant relies on a formal defect in the indictment, he must point it out; and if he goes to trial without having done so, the objection is no longer open to him. The present case falls within this rule. Commonwealth v. Schaffner, 146 Mass. 512. Commonwealth v. Jenks, 138 Mass. 484. Commonwealth v. Murray, 135 Mass. 530.

We can take no notice of the other objections urged in the defendant’s brief, because no facts to support them are before us. Motion to quash rightly disallowed.