Commonwealth v. Dascom

Gray, J. The trial of the issue upon the plea of the former conviction together with the general issue in the case was irregular, but, as it was by agreement, the defendant is bound by the result. Commonwealth v. Merrill, 8 Allen, 545, 547. The jury, having been instructed to find the defendant not guilty “ unless they found that the defendant fraudulently procured himself to be complained of before the magistrate and arrested on a warrant, and voluntarily submitted to a conviction on [406] such complaint, for the purpose of avoiding the effect of a subsequent complaint made by the injured party, which he believed, or had reason to believe, would be made against him,” have, by convicting the defendant, necessarily found that there was such fraudulent conduct on his part. It has been settled in this Commonwealth from a period before the reports of decisions began to be published, that a conviction for assault and battery, obtained by collusion of the defendant before a justice of the peace, was no bar to an indictment for the same offence. Notes of two cases before the full court upon the subject, have been preserved among the manuscripts of Chief Justice Dana. In the first, also reported in 6 Dane Ab. 781, the attorney general, after demurrer to the plea of autrefois convict, and judgment thereon for the defendant, was refused leave to re-plead and allege that the conviction was obtained by collusion. Commonwealth v. Sheldon, Essex, November term 1789. In the second,, the attorney general replied to the plea of a conviction of the same offence before a justice of the peace, that it was procured by collusion of the defendant; the defendant rejoined, traversing the collusion, and tendering an issue to the country, in which the attorney general joined; upon a trial, the jury found that the former conviction was collusive in manner and form as set forth in the replication, and the defendant was sentenced. Commonwealth v. Brown, Middlesex, October term 1798; Rec. 1798, fol. 180. The latter is evidently the case referred to by the court in Commonwealth v. Alderman, 4 Mass. 477. Like decisions have been made in other states. State v. Little, 1 N. H. 257. Commonwealth v. Jackson, 2 Va. Cas. 501. State v. Epps, 4 Sneed, 552. State v. Green, 16 Iowa, 239. The instructions at the trial were in accordance with these decisions, and the evidence introduced was sufficient to warrant the jury in finding that the former conviction was procured by the Iraud of the defendant. Exceptions overruled.