Commonwealth v. Murphy

77 Mass. 53

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Dewey, J.

The offence charged upon the defendants by this indictment is an offence created solely by the provisions of St. 1855, c. 215, § 24, and the mode of prosecution is also distinctly pointed out by the same statute. Such being the case, that mode alone must be pursued. Commonwealth v. Howes, 15 Pick. 231. Rex v. Robinson, 2 Bur. 799. Stephens v. Watson, 1 Salk. 45. The enactment of the statute is, that on conviction before any justice of the peace, or any police court, having jurisdiction to try criminal offences, the party “ shall be fined ten dollars, and pay the costs of prosecution, and shall be imprisoned twenty days in the house of correction.” Jurisdiction being thus directly given to the justices of the peace and the police courts, by the only statute making the act punishable, the jurisdiction does not exist in the court of common pleas to proceed against the party by indictment found in that court.

The offences made punishable by the fifteenth and seventeenth sections of this statute are in terms made the subject of proceeding by indictment in the court of common pleas.

Without expressing any opinion upon the other questions discussed at the argument of the present case, the court are of the opinion that the court of common pleas has not an original jurisdiction of the cases made punishable by § 24 of the St. of 1855, c. 215, and judgment must for this cause be arrested.

Judgment arrested