Commonwealth v. Hogarty

C. Allen, J.

The history of the legislation, as given upon the defendants’ brief, sufficiently shows that the offence of playing an unlawful game, and the offence of being present at such game, are not in all cases to be treated as identical, but that they may be distinct and separate offences. St. 1834, c. 172. Rev. Sts. e. 50, § 19. St. 1857, o. 194, § 4. Gen. Sts. o. 85, § 8. St. 1869, e. 364, § 1. Pub. Sts. <?. 99, § 10. St. 1883, c. 120. There may be such a state of facts that either offence would not be proved by evidence which would be sufficient to prove the other. For example, if one were indicted for being present, and the evidence showed that he procured the game to be played by others in his absence, the charge would fail; although he might have been convicted of actually playing, since in misdemeanors all are to be treated as principals. So, on the other hand, if one were indicted for playing, and the evidence showed that he was merely present as a voluntary spectator, in no way participating in or aiding or encouraging the game, the charge would fail, although he might have been convicted of being present. It does not follow from this that a person would be guilty of two separate offences who should be present at an unlawful game and actually take part in it. It may well be questioned whether the Legislature intended to provide a double punishment in such case, or whether an indictment would be bad for duplicity which should charge in one count the being present and playing as part of one continuous act. See Commonwealth v. Eaton, 15 Pick. 273 ; Commonwealth v. Nichols, 10 Allen, 199 ; Commonwealth v. Brown, 14 Gray, 419 , 430. Still less does it follow that the defendants could not be convicted of being present upon evidence showing that they were also playing. In such case, their acts being simultaneous, the government may well elect upon which charge it will proceed. If the defendants were actually playing, that fact only shows that less was charged against the defendants than might properly have been charged, if the government was confident of being able to prove the fact. It still remains true that, upon the evidence, they were guilty of everything that was charged against them; and it is not for them to object that their offence had in it another element which might have been *110 charged, and which was of a somewhat graver character. In this Commonwealth, it has often been held that, if all the elements of the charge which is contained in the indictment are well supported by the evidence, a conviction may be had, although it appears that another offence would be equally well shown by the evidence; and the possible difficulty of procuring a conviction, if the rule were otherwise, was clearly pointed out by Mr. Justice Dewey, in Commonwealth v. M’Pike, 3 Cush. 181 , 186. See also Commonwealth v. Burke, 14 Gray, 100 ; Commonwealth v. Bakeman, 105 Mass. 53 ; Commonwealth v. Walker, 108 Mass. 309, 314 ; Commonwealth v. Dean, 109 Mass. 349 .

Exceptions overruled.