Commonwealth v. McIvor

Endicott, J. The complaint charges the offence of maintaining a common nuisance on January 1 and on divers other days and times between that day and the day of the date of receiving the complaint. The day of receiving is made certain by the jurat attached to the complaint, which shows it to have been on May 16; in the same manner as the time of finding an indictment may be shown by the indorsement of the clerk, which is a part of the record of proceedings. Commonwealth v. Stone, 3 Gray, 453. Commonwealth v. Walton, 11 Allen, 238. The paper called the record, and which is part of the proceedings sent from the Police Court, recites that the defendant was tried upon a complaint for maintaining a common nuisance on January 1 and on divers days and times between that day and the date of receiving this complaint. The objection is that it does not state the time of receiving, so that the complaint itself is not identified. But the only [121] question is of the identity of the complaint, not of the offence charged. And this is made certain by the attestation of the clerk of the Police Court, certifying the complaint with his record of the trial and appeal thereon. These papers are part of the proceedings and of the record, within the meaning of the law. Benedict v. Cutting, 13 Met. 181, 186. Commonwealth v. Cheney, 108 Mass. 33. The certificate establishes the fact that this complaint is the complaint upon which he was tried and to which the record refers, and reference to the jurat may be had to make the record certain. Commonwealth v. Stone and Commonwealth v. Walton, supra. The case of Commonwealth v. Galligan, 113 Mass. , cited by the defendant, has no application. There the record was held defective because the complaint upon which the defendant was tried in the Superior Court might be supported by evidence which would not have been admissible under the complaint upon which he appeared by the record to have been tried in the Police Court. But in this case the mere identity of the complaint being established by reference to the jurat, no such question did or could arise. There was evidence that the defendant was the keeper of the tenement in question during the time charged in the complaint, and was daily seen inside the bar, around the door, and in the immediate vicinity. It was not irrelevant to the issue to show that during that time the defendant was not seen doing business at any other place. On the same principle, evidence is competent to show that a person is not known to have any means, or to be engaged in any business. Stebbins v. Miller, 12 Allen, 591. Exceptions overruled.