Commonwealth v. Merriam

Metcalf, J.

The first alleged cause of demurrer, if found to exist, might have been sufficient, namely, that it does not appear by the declaration, or by the recognizance thereto annexed, that said recognizance was taken at a term or session of the police court for criminal business, and therefore it does not appear that it was taken by a court having jurisdiction of the case. 4 Mass. 641. But, as the declaration avers that the defendant, on the 13th day of December 1862, entered into the recognizance before the justices of the police court of Boston, “ then and there duly qualified to take bail in the premises,” it sufficiently avers that it was taken before the court held for criminal business; the court held for civil business having no authority to take bail in a criminal case. The jurisdiction of the court, being well alleged, is admitted by the demurrer.

The second and third causes of demurrer present one and the same objection, namely, that the charge of “ knowingly receiving stolen goods ” shows no offence. And if the complaint had made the charge in that form, it would have been fatally defective. Commonwealth v. Boynton, 12 Cush. 499. But the recognizance, after thus stating the charge, adds, “ as more fully set forth in said complaint,” thus referring to the terms of the complaint; and on looking at the complaint we find that it alleges, with technical accuracy, that Mary J. Reynolds, at a certain time and place, “ did feloniously receive and have ” certain enumerated goods, “ she then and there well knowing the same to have been stolen.”

The last cause assigned for the demurrer is no legal cause. The clerk’s certificate on the recognizance, that it was filed iv court, is the regular evidence of that fact, but is not the only sufficient evidence. The superior court rightly overruled tk.-. demurrer.

The facts proved at the trial sufficiently supported the aver ment in the declaration, that the recognizance was returned to the superior court and made a record of that court. Benedict v. Cutting, 13 Met. 181. Hawkes v. Davenport, 5 Allen, 390.

Exceptions overruled.