Commonwealth v. Brown

Constitutional Law — Offence against Town and County of Nantucket — Grand and Traverse Jurors — Motion in Arrest of Judgment — Plea of11 Exception to Jurisdiction.” Upon a motion in arrest of judgment, in a criminal case, nothing is open to the defendant except matters appearing of record at the time the motion is filed. After a verdict of guilty on an indictment, the defendant filed in the Superior Court a plea of “ exception to the jurisdiction,” alleging that certain forgings and utterings, recited in the indictment, were made with intent to defraud the town or county of Nantucket, which are territorially the same, and setting forth for the first time, that, before the complaint was made against him, the town passed a vote declaring him guilty, and directing the selectmen as its agents to prosecute him criminally; that the selectmen made a complaint to a resident trial justice who had advocated the passage of and joined in the above vote; that after the defendant was bound over for trial the selectmen, in pursuance of the vote, employed counsel and prepared evidence for the grand jury; that while so engaged the selectmen made out a preliminary list of qualified jurors exceeding in number the legal limit; that thereafter, at a town meeting composed exclusively of the selectmen and one other person, the town made up from such preliminary list the final list, from which the grand jurors and trial jurors who afterwards made the presentment and tried the defendant were taken; and that all but five of such grand jurors were present at the town meeting at which the vote declaring the defendant guilty and directing his prosecution was passed, and joined in the vote. Held, that this plea was a motion in arrest of judgment under another name, and that the above facts could not be brought before the court by it; and that such facts did not, by force of the State or Federal Constitution, affect the jurisdiction of the Superior . Court to receive and try the indictment, and did not invalidate the presentment or the verdict.

Indictment, returned at July term, 1888, of the Superior Court for the county of Nantucket, in twenty-two counts, for forging and uttering certain writings, each of which was described as a “discharge for money,” and purported to be a bill rendered to the town or county of Nantucket by various persons or firms, for personal services, for rent of post-office box, and for articles furnished to the town or county, and to have been duly receipted upon payment thereof. After the former decision, reported 147 Mass. 585, the case was heard by Hammond, J., and the defendant alleged the following bill of exceptions: “The defendant, after his exceptions heretofore taken had been overruled, filed a plea of exception to the jurisdiction of the court, a copy of which is hereto annexed and made a part hereof. The plea came to be heard on the first Tuesday in July, A. D. 1889. At the hearing, it was admitted by the government that the allegations of the plea were true, except the allegation of an intention of the complainants, mentioned in the plea, that the defendant should be held in a sum sufficient to cover charges other than those expressed in their complaint. No evidence was offered by the defendant as to such intention. The court overruled the plea, and the defendant excepted, and he now prays that his exceptions may be allowed.” The following indorsement appeared upon the bill of exceptions, signed by the judge: “ Exceptions examined and allowed.” Upon the page following the above bill of exceptions, as printed by the clerk of the Superior Court and transmitted to this court, was printed the following, signed by the attorney for the defendant, being the “ statement ” referred to in the opinion: “ The defendant, after his exceptions heretofore taken had been overruled, filed a motion in arrest of judgment, a copy of which is hereto annexed and made a part hereof. The motion came to be heard before the court on the first Tuesday in July, A. D. 1889. At the hearing, it was admitted by the government that the allegations of the motion were true, except the allegation of an intention of the complainants, mentioned in the motion, that the defendant should be held in a sum sufficient to cover charges other than those expressed in their complaint. No evidence was offered by the defendant as to such intention.” The judge overruled the motion; and the defendant appealed to this court. The copies of the plea and the motion referred to and annexed, which were printed upon the pages succeeding the above, after reciting that it appeared of record in the case that the forgings and utterings in question were committed, if at all, by-making or raising vouchers to be presented, and actually presented, to the county and town treasurer of Nantucket for the alleged purpose of defrauding the town or the county, in addition to matters set out in the former report of the case, averred “ that at a meeting of the inhabitants of the town of Nantucket, held on April 14, 1888, duly called and warned, and having an appropriate article in the warrant, the selectmen, who were also ex officio the county commissioners of the county of Nantucket, were by vote instructed as follows: Voted, That the selectmen be and are hereby instructed (and made special agents of the town for the purpose) to bring in the name of the town, or otherwise, a criminal action against John F. Brown [meaning this defendant] for embezzlement of county or town funds, or both, or for such other criminal acts as he has committed against said town or county during the time he has been clerk of courts for the county of Nantucket or town clerk for the town of Nantucket, hereby granting to the aforesaid special agents of the town plenary powers in all matters connected with the aforesaid”; that the defendant for a long time prior to the passage of this vote had been clerk of the town, and clerk of courts for the county; that, at the town meeting at which the above vote was passed, a committee previously duly appointed by the town for the purpose had presented a report, charging the defendant with the forgings and utterings in question, or some of them; that the criminal acts of the defendant referred to in the above vote were intended to include a charge of unlawfully procuring from the town or the county, or from both, sums of money by means of the forgings and utterings in question, or some of them; that, pursuant to the vote, the selectmen, who were seven in number, employed counsel to aid them in instituting and furthering criminal proceedings; that on April 20,1888, five of the selectmen, describing themselves as “ special agents of the town of Nantucket duly authorized at a special town meeting held April 14, 1888, to bring in the name of the town a criminal action against John F. Brown for embezzlement of county or town funds, or both,” subscribed and made oath, before a trial justice for the county of Nantucket, to a complaint against the defendant for embezzling moneys of the town received by him as town clerk; that the other two selectmen concurred in the complaint, and promoted the prosecution of it; that the trial justice to whom the complaint was presented was an inhabitant and voter of the town, and at the town meeting when the above vote was passed had voted for and by speech had publicly advocated the adoption of the vote, and, in speaking of the subject matter of the vote during the discussion upon it, declared publicly that the defendant was guilty of the charge subsequently set forth in the complaint, and of numerous other charges subsequently embodied in the indictment; that these facts as to the trial justice were well known to all the selectmen; that before the complaint was made the selectmen advised with the trial justice as to the prosecution; that the trial justice ordered the defendant to recognize for his appearance before the Superior Court at its July sitting in 1888; that the complainants intended that the defendant should be held in a sum sufficient to cover charges other than those recited in the complaint; that afterwards the selectmen with their counsel prepared evidence and sought out witnesses against the defendant before the grand jury who should act upon the charges contained in the complaint, and subsequently embodied with others in the indictment; and that after making the complaint the selectmen, while furthering the prosecution of the defendant, proceeded as required by law to prepare a list purporting to be a list of persons qualified to serve as jurors, from which were to be drawn, and from which actually were drawn, the grand jurors before whom they were to present, and subsequently did present, their accusations against the defendant, as well as the trial jurors who were to try any indictment against him, if found, and who did sit at the trial of the defendant; and that thereby the said prosecutors made up tribunals to inquire into and to try the matter of their own prosecution. The plea and motion further alleged, that the selectmen, in preparing a list of persons qualified to serve as jurors, made up a list of ninety-two persons, although the last census of the town, which showed the number of inhabitants to be three thousand one hundred and forty-two, according to the law called for a list of not less than thirty-one and of not more than fifty-three persons; that at the meeting of the inhabitants of the town at which were drawn from such list the grand and trial jurors for the July sitting of the Superior Court, no inhabitants of the town were present and took part except the above named complainants and their two fellow selectmen, and the constable who had served the warrant for the meeting; that such complainants and their two fellow selectmen at that time drew and chose the grand jurors and trial jurors who subsequently made the presentment and sat upon the trial of it; that the grand jurors who made presentment against the defendant were twenty-three in number; and that all but five of such grand jurors were present at the town meeting at which the above named vote was passed, and joined in its passage. The plea and motion concluded by alleging that the grand . jury by whom the presentment was made were utterly disqualified to return the indictment; that the traverse jurors who tried the defendant and returned the verdict against him had no jurisdiction or authority to try the indictment; that all the acts and doings above set forth were in conflict with the twelfth article of the Declaration of Eights of this Commonwealth, and with the Fourteenth Amendment of the Constitution of the United States; and that the conviction of the defendant and all the proceedings had against him upon the indictment were null and void.