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126 Mass. 246

Commonwealth v. Bressant

Massachusetts Supreme Judicial Court

Decided January 25, 1879

Massachusetts Supreme Judicial Court · decided 1879-01-25

Indictment chargmg the defendant, on September 9, 1878, at Boston, with the larceny of “ divers promissory notes of the amount and of the value in all of nine hundred and fourteen dollars, a more particular description of which is to the jurors unknown, of the property, goods and chattels of one Nicholas Moens.” At October term 1878 of the Superior Court, the defendant filed a plea in bar, the substance of which appears in the opinion, to wMch the government demurred.

Key passage — most relied on by later courts

“'The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle prosequi of an indictment. By neither of these is the defendant acquitted of the offence charged against him, but he is only exempted from liability on that complaint or indictment.'”

quoted by 1 later decision, including Britton v. Maloney

Good law ✅— No negative treatment on recordhow we know

Decided 1879-01-25

How this case has been cited

Cited by 18 later decisions — most recently March 2009

17 state decisions

3018791880189019001910192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Morton, J.

¶1The only question which the defendant now presents for our consideration is whether his special plea in bar is a good plea of a former acquittal of the same offence charged in the indictment.

¶2The plea, after alleging that a complaint was made against the defendant before the Municipal Court of the city of Boston, charging him with the larceny of divers promissory notes the property of Nicholas Moens, and that a warrant thereon was issued upon which he was brought before said court and arraigned on the 4th day of October, when he pleaded not guilty, avers that “the case was continued until the tenth day of the present month of October, when he was again brought before said Municipal Court, and said complaint was dismissed, and he was lawfully discharged and acquitted on said com plaint of the same offence with which he is now charged in said indictment.”

¶3This is not a good plea of a former acquittal. The leading allegation is, that the “ said complaint was dismissed.” If the words that follow, “ and he was lawfully discharged and acquitted on said complaint,” are to be construed as a substantive allegation of a former acquittal, it is inconsistent with and repugnant to the other allegation. The effect of dismissing a complaint without a trial is like that of quashing or entering a nolle prosequi of an indictment. By neither of these is the defendant acquitted of the offence charged against him, but he is only exempted from liability on that complaint or indictment. Commonwealth v. Gould, 12 Gray, 171. Taking the whole allegation together, the only sensible meaning is that the complaint was dismissed, and so the defendant was acquitted, the latter allegation being not an averment of a fact, but a statement of the defendant’s conclusion of law from the main facts stated.

¶4A demurrer admits only those facts which are well pleaded. The demurrer of the - government in this case admitted that a complaint against the defendant for the same offence charged in the indictment had been dismissed. But, as we have before said, this was not an acquittal of the offence, which could be pleaded or given in evidence in bar of the indictment.

¶5*248We are therefore of opinion that the rulings of the Superior Court, sustaining the demurrer and ordering the defendant to plead over to the indictment, were correct.

¶6.Exceptions overruled.

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