Commonwealth v. McKenney

80 Mass. 1

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1859
• Status: Published

Opinion

Shaw, C. J.

The defendant’s argument is, that as one day had been named in the caption, and another day as the day of the commencement of the term described in the indictment, it is uncertain to which “ that day” refers. But we can perceive no such uncertainty. By a familiar rule of grammatical construe-

tian, “ that day ” was the day last named. And the qualifying clause (which is not a distinct averment), “ she not being then and there duly appointed ” &c., clearly refers to the period of time just set forth.

Another ground was taken in arrest of judgment, which also appears in some other cases, that since the acts charged as criminal were done, the punishment for being a common seller has been changed and diminished by a law repealing a previous provision by which a fee of ten dollars was allowed for an attorney before the magistrate, and made part of the penalty to which the defendant, in case of conviction, should be subject. But we think this change in the law affords no ground for arresting the judgment; first, because it merely affects the mode of taxing the costs ; and secondly, because a diminution of the punishment, after the act done and before conviction, does not prevent a judgment for the milder punishment. Commonwealth v. Wyman, 12 Cush. 237.

Motion in arrest of judgment overruled.