State v. Libby

Emery, J.

The defendant and appellant made several objections to the proceedings and rulings of the appellate court upon the trial of his appeal.

1. He objected to the amendment of the imperfect copy of the complaint and process making it a true copy. The amendment was clearly allowable. The court was entitled to a correct copy, and could receive it at anytime before the case wa.s given to the jury. Com. v. Phillips, 11 Pick. 29 ; Com. v. Magoun, 14 Gray, 398.

2. He also objected to the empanneling of the jury anew after the new and correct copy of the complaint was obtained. Upon the discovery of the error in the copy after the trial was thus begun, it was within the discretion of the court to suspend the trial to be resumed after the correction of the error, or to stop the trial and begin it again after such correction. Com. v. Kelly, 12 Gray, 123 ; E. S., c. 134, § 24.

*172The copy of the complaint upon which the jury was first empanneled did not disclose any offense, nor did the defendant upon the second empahneling interpose any plea of former jeopardy. Com. v. Chesley, 107 Mass. 223.

3. The defendant moved in arrest of judgment upon the ground that the first copy charged no offense. The judgment, however, will be upon the second and true copy which does charge the offense.

Exceptions overruled. Judgment for the State.

Peters, C. J., Walton, Virgin and Whitehouse, JJ., concurred.