Commonwealth v. Swain

35 N.E. 862, 160 Mass. 354, 1894 Mass. LEXIS 277

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1894
• Status: Published

Opinion

Holmes, J.

The complaint follows the language of the statute, and sets forth an offence against the law. St. 1885, c. 342. Commonwealth v. Ferry, 146 Mass. 203. Commonwealth v. Clancy, 154 Mass. 128. In Commonwealth v. Sheedy, 159 Mass. 55, the offence alleged consisted of disposing of a single suit of clothes, and it was held necessary to identify the transaction by stating the name of the person to whom the suit was disposed of, if known. But when, as here, the offence consists in being present in a room and engaged in a certain business, it is not necessary to mention names. See further Commonwealth v. Horton, 2 Gray, 69, 70.

We have expressed our opinion upon the merits, but this motion in arrest of judgment appears by the record to have been made after default. The case being in the Superior Court by appeal from the Municipal Court, nothing remained to be done but to enter judgment and therefore the motion was not premature. Pub. Sts. c. 155, § 62. Commonwealth v. Whitney, 108 Mass. 5. But by Pub. Sts. c. 214, § 27, “ no motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the same affects the jurisdiction of the court.” It is settled that the words “ before verdict ” only mark a stage of the case in a convenient and general way. They signify that the cause relied on must have arisen after the facts are settled by some of the means known to the law, but they are not to be taken literally as requiring a verdict to have been rendered in order to make the section applicable. Commonwealth v. Chiovaro, 129 Mass. 489. The present motion falls within the statute.

Judgment affirmed.