Commonwealth v. Heffron

Gray, J..

1. An offence having no essential connection with the place in which it is committed, like a common assault or a simple larceny, though charged to have been committed in a particular town, may be proved to have been committed anywhere within the county. Commonwealth v. Tolliver, 8 Gray, 386 . Commonwealth v. Lavery, 101 Mass. 207 . But in an indictment for an offence in its nature local, as in the cases of larceny in a building, burglary, arson, desecrating and disfiguring a burying ground, striking in a church yard, or nuisance in a highway, the allegation of place is a necessary part of the description of the offence, and must be proved as laid. Commonwealth v. Wellington, 7 Allen, 302 , and authorities cited. People v. Slater, 5 Hill 401 . 2 Gabbett Crim. Law, 213. It was therefore rightly ruled *151 at the trial that the question whether the tenement which the defendant was charged with keeping and maintaining as a nuisance was in Northampton, as alleged, or in Williamsburgh, was material.

But the position of the defendant, that the line between the two towns could only be proved by a record of perambulations by the selectmen, cannot be sustained. Selectmen have no authority to change the boundaries or to adjudicate upon the limits of towns, but only to ascertain existing lines and renew old marks and monuments. Their perambulations are competent and strong evidence of the location of the lines, but they are not conclusive. Gen. Sts. c. 18, § 3. Freeman v. Kenney, 15 Pick. 44 . Putnam v. Bond, 100 Mass. 62 . If their record of perambulations were produced, and not sought to be impeached for mistake or controlled by other evidence, oral testimony would be competent, as in the case of applying a deed or other written instrument, to show the actual position of the line upon the land. Hayden, who was acquainted with the dividing line between Northampton and Williamsburgh, having lived near it, and run it when measuring his own land, was therefore rightly permitted to testify on which side of the line the tenement in question was situated.

2. The testimony of the defendant that she had paid money to the collector of Williamsburgh for taxes assessed in that town on this tenement as her husband’s property was, taken by itself, incompetent; and its admissibility was only sought to be justified in connection with her further offer “ to show that said tax was assessed against her husband in Williamsburgh,” which must fairly be taken to mean by the best evidence of that fact, namely, the records of the assessors.

The book of assessments of taxes, made and kept by the assessors in the performance of their official duty, in accordance with the requirements of the Gen. Sts. c. 11, §§ 33, 34, is doubtless competent evidence of the facts therein stated in all cases relating to the assessment or collection of the tax. The King v. King, 2 T. R. 234. Ronkendorff v. Taylor, 4 Pet. 349 . How far it is admissible for any other purpose, and in controversies *152 between persons not claiming rights under it, is a question upon which the authorities are somewhat obscure. But upon a careful examination we do not find any adjudication in favor of its admissibility against third persons, by itself, and when recently made, and not expressly declared to be evidence by statute.

The taxations and surveys which were admitted in evidence of the value of lands in Bullen v. Michel, 2 Price, 399; S. C. 4 Dow, 297; were very ancient documents, and were held competent on that ground. In Doe v. Cartwright, Ry. & Mood. 62; S. C. 1 C. & P. 218; Lord Chief Justice Abbott admitted the land tax collector’s book, containing an entry by him, stating the assessment of a tax on a certain house to a certain person .and his payment thereof, to show that he then occupied the house, upon the sole ground that the et-.Lry of payment was an entry against the interest of the collector. In Doe v. Seaton, 2 Ad. & El. 171; S. C. 4 Nev. & Man. 81; assessments more than sixty years old to a certain name were admitted for a like purpose, only in connection with the steward’s book showing allowances to the tenant for corresponding charges, and other evidence, and between parties both claiming through the person to whom the book belonged at that time.

In Doe v. Arkwright, 5 C. & P. 575; S. C. 2 Ad. & El. 182 note; 1 Nev. & Man. 731; Mr. Justice Parke (afterwards Baron Parke and Lord Wensleydale) expressed the opinion at nisiprius, that a land tax assessment was not evidence of seisin in the person assessed; and at the argument in banc said : “ The only ground of its admissibility seems to be the duty incumbent on the assessors to ascertain the occupier and charge him.” “ I thought them no evidence of the title. At any rate they would only show the opinion of the parish officers.” . A.nd Lord Denman said: “ It would be indifferent to them from whom they got the amount of tax, so that it was raised.” The court of queen’s bench, without passing upon the general question, held that the books offered in that case were no evidence of seisin, because it was shown to have been a common practice to retain the name of a deceased proprieto* on them until the estate was sold to a different family.

*153 In Welland v. Middleton, 11 Irish Eq. 603, Lord Chancellor Sugden, upon the question whether a letting of certain lands was within a leasing power by which the donee was restricted to leasing at the full value, admitted the valuation of the Irish poor law commissioners as some evidence of the annual value of the lands as therein stated. But the learned chancellor prefaced his opinion by saying, “ This is a mere matter of curiosity; for the evidence of several witnesses has been read, who swear to what the valuation is under the poor law, so that the admission of this document is not material.”. And the statute, under which that assessment was made and recorded, not only required the entry in a boob of a declaration signed by the commissioners, stating that and other particulars, but expressly provided. that “ the said book shall after the signature of the said declaration be evidence of the truth of every .particular so entered therein.” St. 1 & 2 Viet. c. 56, §§ 64, 65. Lord Chancellor Brady afterwards admitted such books, in a case between third persons, solely upon the authority of his predecessor’s decision. Swift v. M’ Tiernan, 11 Irish Eq. 602.

In Boston v. Weymouth, 4 Cush. 538 , upon the question of the settlement of a pauper, and to show that he paid no taxes in a town in a certain year, an entry upon the books of the selectmen in favor of the collector for the discount of such taxes was held to be admissible after the lapse of more than forty years and the death of all the town officers, because adverse to the interest of the town, and an ancient transaction. In Edson v. Munsell, 10 Allen, 557 , the books of the assessors, showing an assessment of real estate to a guardian, were admitted in connection with a bond for the faithful performance of his trust, purporting to have been executed more than fifty years ago by the guardian, and produced by the register of probate, and with the register’s testimony that there was no other record or evidence of the appointment in the probate office, to show that the ward was under guardianship at the time of the assessment.

On the other hand, it was held by this court in Mead v. Boxborough, 11 Cush. 362 , that the assessment of a man’s poll and personal property in one town was no evidence of his domicil *154 as against another town; and in Flint v. Flint, 6 Allen, 34 , and Kenerson v. Henry, 101 Mass. 152 , that the valuation and assessment of real estate under the tax act was no evidence of its value as between third persons. Those cases are decisive of the present. The assessment can be no better evidence of the situation of land, than it is of the value of land or the domicil of the person. The domicil of persons, the situation and value of property, and other facts, are required by the tax acts to be ascertained and recorded by the assessors, according to their best information and opinion, for the sole purpose of the assessment and collection of the tax; and there would be great danger of injustice if their estimates of any of these details or incidents were held to be competent evidence against third persons of any fact of which better evidence is obtainable. The assessment offered in evidence by the defendant was therefore rightly excluded.

3. The conviction of the husband for keeping and maintaining this tenement as a nuisance in violation of the Gen. Sts. c. 87, §§ 6, 7, during a certain period, if admissible at all in this case, was not inconsistent with the prosecution and conviction of the wife, either jointly with him, or severally, for a like offence, upon proof that she, during part of the same time and in the same tenement, and without his coercion, did the acts necessary to constitute guilt on her pare. Commonwealth v. Tryon, 99 Mass. 442 .

4. The final ruling of the judge appears to have been made and reported solely in reference to the points taken by the defendant at the trial and already considered. The objection now raised that this ruling was imperfect in allowing the jury to convict the defendant upon proof that she merely used the tenement for the illegal sale and keeping of intoxicating liquors, without proof that she kept and maintained it within the meaning of the statute, cannot be considered as presented by the biL' of exceptions. Exceptions overruled.