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Full text of "Report of the attorney general for the year ending .."

HOUSE No. 4. 

REPORT 



THE ATTORNEY GENERAL, 



L.EOII$LATURE OF lHASSACIir^ETTS, 



JANUARY 1, 1834. 



BUTTON AND WENTWORTH, PRINTERS TO THE STATE. 
1834. 



SfATIi HOUSE, BOSTON. 






1888 



Boston, 1st January, 1834. 

SIR: 

I HAVE the honor to enclose a Report prepared in 
obedience to the "Act enlarging the jurisdiction of the 
Court of Common Pleas in criminal cases and regulating 
the appointment and duties of prosecuting officers," 
which I beg leave, through you, to present to the Legis- 
lature. 

I have the honor to be, 

With great respect. 

Your most ob't serv't, 

JAMES T. AUSTIN, 

Attorney General. 
To the Honorable the Speaker 

of the House of Representatives. 



^ommoniDteiUfi of ^muut^nmttu. 



To the Honorable the Legislature of the Commonwealth 
of Massachusetts. 

In obedience to the Statute of 1832, Chapter 131, I 
herewith submit my annual statement of the Official 
business of the Attorney General for the year ending 
on 31st October last : and in schedules B. C. D. E. F. 
respectively, an abstract of the reports made to me by 
the County Attorney and District Attornies of the Com- 
monwealth. 

Under the further provisions of the Statute, which re- 
quires the Attorney General to submit to the Legislature 
" such observations and statements as in his opinion the 
criminal jurisprudence and the proper and economical 
administration of the criminal law of the Common- 
wealth warrant and require," I have the honor 

RESPECTFULLY TO REPORT, 

That the system established by the law of 1832, un- 
der which the jurisdiction over criminal acts is chiefly 
conducted, has thus far answered the purposes for 
which it was designed, and appears to be very general- 
ly acceptable throughout the Commonwealth. 



6 ATTORNEY GENERAL'S REPORT. Jan 

It has relieved the Supreme Judicial Court of a great 
and an increasing amount of inconvenient labor, which 
the progress of population was tending to augment, 
and by which the important civil business in that Court 
would have gradually become more and more embar- 
rassed and retarded. It is prompt and efficient in its 
action, while it secures to all persons interested, an im- 
partial investigation of imputed crimes. It is much less 
burthensome in point of expense. What is the precise 
benefit derived from it, in this particular, cannot as yet 
be exactly ascertained, because the costs of cases aris- 
ing under the former system, and pending when the 
present system went into operation, are carried into the 
general accounts. Its favorable influence on the Treas- 
ury must, however, be soon felt in lessening the amount 
of bills for the support of accused persons and convicts 
in the County Jails, in the reduction of Jury and Wit- 
ness rolls, and by the effect of that supervision, which 
the District Attornies, with great personal and unusual 
labor now exercise over the accounts of Magistrates, 
Sheriffs, Constables and others, concerned in the pre- 
liminary examination of suspected persons ; and by the 
control which they have over the incidental and miscel- 
laneous expenses of criminal prosecutions. This last 
branch of duty, which I have reason to believe has 
been discharged with great fidelity and care, is a part 
of the present system that entirely escapes public ob- 
servation, while it is productive of the most useful re- 
sults. Further improvement may be made in the 
economy of the system, by a revision of the fee table, to 
which in a former report I took occasion to refer, as a 
subject which has an essential bearing on the proper 
and economical administration of the criminal law. 



1834 HOUSE— No. 4. 7 

The Report and Abstracts which are herewith pre- 
sented according to the requisition of the Statute, are 
intended to show something of the extent, character, 
and progress of prosecutions for crime, within this Com- 
monweahh ; and if continued for a series of years will 
accumulate a mass of facts of an interesting statistical 
character, that cannot fail to give an useful direction to 
legislative enactments. The official duties of the At- 
torney General for the year are stated in detail, as the 
Statute requires. The Reports made to me by the 
County and District Attornies are full and minute, but 
the Statute providing that these should be condensed, 
and abstracts of them prepared, without pointing out 
any particular form, they have been arranged with 
some care to correspond with similar reports annually 
made to the department of Justice in France,* and with 
those tables which have been formed in Great Britain 
for the use of the Commissioners engaged in a revision 
of the criminal law.f These Abstracts do not profess 

* From the French " Statistics of Ci-ime" it is estimated that one individ- 
ual out of 4460, is tried for some crime. That of 100 tried, 61 is the regular 
proportion of the condemned. 

From a table of the number of Murderers, it appears that there were in 
the year 1826 . . 241 

1827 . . 234 

1828 . . 327 

1829 . . 231 

t Number of persons committed, sentenced, or acquitted of crime in Eng- 
land and Wales, for seven years, ending in December, 1830. 



Committed \ J?^'«^^' ?6,513 
I Females, 19,05b 

Acquitted, 

No bills, . 

Convicted, 

Sentenced to death, 

Executed, 

Sentenced to be transported, 



Total, 115,569. 

23,330 
11,387 

80,852 
8,781 
407 
27,862 The 



8 ATTORNEY GENERAL'S REPORT. Jan 

to give the rdfcord of actual crime. They can deal only 
with such cases as are presented for judicial animadver- 
sion, but it will not be an inconsiderable advantage to be 
derived from them, if they enable the Legislature to 
compare the business of criminal Courts with the 
known state of society, and thus to ascertain whether 
there is any defect in the criminal department, arising 
either from the provisions of the law, or the mode of 
administering it. And as the beauty of civil govern- 
ment, and of a Republican government above all others, 
is to administer justice in mercy, for which purpose the 
certainty of the law is of more value than its severity, 
the record of convictions and punishments will be a 
necessary and sure guide to secure in this way the good 
order of society. 

Of the punishments which appear to have been 
awarded, it may be said they conform to the genius of 
our institutions and the character of our people. They 
are just, wise, and humane. No person has been capi- 
tally punished. Only one has been sentenced to the 
State Prison for life. More than two thirds of all who 
have been sent there under the present system have 
been sentenced to confinement for a period not exceed- 
ing two years, and several for an uncommonly short 
period of a few months. The larger number of crim- 
inals have been subjected to confinement in the County 
Jails or Houses of Correction. Many have been pun- 
ished by pecuniary fine, which in cases of misdemeanor, 



The number of persons found on trial to be insane, and acquitted for that 
cause, is surprisingly small compared with like investigations in the United 
States. Thus, in one year, out of 2796 persons put on trial, one only was 
acquitted by reason of Insanity. In another year, out of 2134, there were 
only two acquitted for the same cause. 



1834. HOUSE.— No. 4. 9 

as appears in these abstracts, has been considered 
the appropriate penalty. It is in this way that by a 
just retribution the offender is made to pay the expense 
of maintaining the law which he violates. The whole 
sum thus assessed may appear a large one, amounting, 
as it does, to ^3700 through the Commonwealth, in ad- 
dition to the sum collected or to be collected on for- 
feited recognizances, which cannot be less than ^1300 
iuore, making for the year, a total of seven thousand 
dollars. A portion of this may be lost by the inability 
of parties to pay, or by subsequent reductions by the 
competent tribunals, but as a fine is not imposed by 
preference, where the party is of known inability the 
greater portion will probably be collected. In the 
foregoing estimate, the fine of no one person exceeds 
one hundred dollars. 

It is perhaps my particular duty to bring this subject 
of punishment to the notice of the Legislature, because 
at the time of the great transfer of jurisdiction made by 
the recent law, which assigns to the Court of Common 
Pleas the high office of administering justice in criminal 
matters, the manner in which it would probably be ex- 
ecuted, was a subject of deep solicitude, and because 
experience in this respect is to test the wisdom of that 
legislation by v\'hich the jurisdiction was transferred. 
And I discharge this part of my duty, therefore, with 
peculiar satisfaction, because it enables me to bear tes- 
timony not only to tlie learning and patience, but to the 
moderation and mildness of the Honorable Justices of 
that Court. 

The attention of the Legislature will probably be 
drawn to the question whether cases of crime ap- 
pear to increase, a question to which these reports in 
2 



10 ATTORNEY GENERAL'S REPORT. Jan 

time will be able to furnish an answer. There are at 
present, i'ew materials by which to institute a compari- 
son between the last and former years. The returns 
made by order of the Legislature, for five years, from 
1826 to 1830, were incomplete ; but as near as can be 
ascertained from them, about four thousand prosecu- 
tions} were instituted in the Supreme Court, Court of 
Common Pieas, and Municipal Court, during that pe- 
riod, being an average of eight hundred a year. So far 
as a discrimination can be made, it would seem that the 
latter half of the time furnished the greater number.* 

Under the present law there has been made only one 
other report, covering a period of but five months. It 
exhibited five hundred and thirty cases, which would be 
an average of twelve hundred and seventy-two per an- 
num, but as that report necessarily embraced all the 
cases arising before the 1st June, 1832, which were 
pending on that day, a deduction must be made from 
the annual number indicated by it, which would proba- 
bly reduce the whole to twelve hundred new cases with- 
in the year. 

The present report and abstracts make the only com- 
plete return for an entire year reported by officers, who 
were apprized, while the business was doing, that an 
account of it would be required of them. The whole 
number of cases of complaint amounts to thirteen hun- 
dred and ninety-one. But these returns do not include 
cases occurring in the Police Courts, unless they pass 

* In Suffolk, there were by that Report, in the Municipal and Supreme 
Courts, in 



1826, 


cases 


263 


1827, 


(( 


236 


1828, 


(( 


229 


1829, 


(( 


240 


1830, 


(( 


279 



1834. HOUSE— No. 4. 11 

from those Courts for further examination. Two of 
these Courts have been established within the year, and 
it is among the advantages expected from them, that 
minor cases of crime which would otherwise be carried 
to the higher tribunals, may be adjudicated there, and 
others prevented, by the salutary exercise of precau- 
tionary power.* 

On the whole, it is probably a just conclusion, that 
with the increase of population there has been an ac- 
tual, but not a proportional, increase of criminal prose- 
cutions. It is, however, a satisfaction to know that 
any increase in the numerical amount is not made by 
unusual additions to those of an high and aggravated 
nature. On referring to the Abstracts under the head 
of Nuisance, which comprehends all obstruction and 
defect in the Highways, it will appear that a greater 

* Number of cases in the Police Court for the City of Boston, 

1831, cases 1598. 

1832, " 1904. 

1833, « 2197. 

Number of cases in the Police Court of Salem, in the year 1833, are 218. 

Number of cases in the Police Court of Newburyport since its establish- 
ment, 1 June, 1833 to 31 Dec. inclusive, 43 cases. 

In the Police Court of Lowell since its establishiuent, 1 April, 18.33, to 31 
Dec. 1833 inclusive, G6 cases. 

Very little satisfaction can be derived from a comparison between any 
part of our country and the City of London, so very different in all its char- 
acter of crime. But by the official returns of tiie number of persons appre- 
hended by the new police of that place during the year 1832, it appears, that 
there were arrested 

Males, 45,907 

Females, 26.917 

Total, 72,824 

Supposing the population of London to be twenty times that of Boston, 
the same proportion would give for Boston, .3641, instead of the actual num- 
ber of 1904. 



12 ATTORNEY GENERAL'S REPORT. Jan 

demand has been made on Municipal and Turnpike 
Corporations to do the duty enjoined upon them by law. 
The Lottery and License laws have given occasion to 
institute an unusual number of prosecutions, because a 
more enlightened public sentiment has shewn an in- 
creasing determination to enforce the penalties. 

Of the nine persons accused of capital crimes, referred 
to in my last annual report, one only was condemned to 
suffer death, and the sentence in his case ^vas commuted 
by the Supreme Executive into confinement to hard 
labor for life. It cannot, however, be safely affirmed, 
that the acquittal of the party charged is proof that no 
one had committed a crime. Unfortunately in several 
of these cases, the evidence only shifted the iniquity 
from the party on trial, leaving the community to lament 
the impunity of an undiscovered criminal. The case of 
Murder reported by the Attorney of the Northern Dis- 
trict, in which the Grand Jury were unable to find a bill 
against the party accused, was yet a case of horrible 
atrocity, perpetrated by some undiscovered felon in 
broad day, on a peaceable and unoffending citizen, in- 
dustriously occupied in his work-shop. 

These high and important cases, imposing on all per- 
sons engaged in a judicial investigation of them the 
deepest responsibility, and enjoining the most momentous 
and solemn duty in which human beings can engage, 
it was hoped would be of infrequent occurrence, but 
the violence of human passion, and the derangement of 
human reason forbid us to hope they will ever cease to 
be the subject of judicial investigation. 

At the period of closing the accompanying abstracts, 
there were confined in Middlesex, one person under in- 
dictment for Murder, and one in Plymouth, and seven 



1834. HOUSE— No. 4. 13 

in Barnstable accused of the same crime. Since then, 
the trial of the capital case in Middlesex has terminated 
in the acquittal of the prisoner by reason of Insanity, 
and his confinement in the State Lunatic Hospital by 
order of Court. One other person has been committed 
in that county charged with a capital offence. So that 
there are at this date, nine persons in confinement, 
whose cases must be judicially examined in the forms 
appropriate to a capital trial. 

In this connection it is proper to say, that notwith- 
standing the number of cases herewith reported, the 
arm of the law has failed to bring to trial other offen- 
ders guilty of flagrant and dangerous crimes. 

Burglaries and aggravated larcenies have been perpe- 
trated where no suspicion has fallen on the actual perpe- 
trators ; and an extensive scheme of forgery, to a great 
amount, has been successfully practised, and was con- 
cealed until the criminal had time to escape. The year 
has also been remarkable for repeated instances of a crime, 
which by its consequences withdraws the criminal from 
all human punishment. Suicide, often the result, and 
many times the attendant of other flagitious conduct, 
has been fearfully witnessed, and the peace of so- 
ciety seems to lay an obligation on the wisdom of its 
Legislators to devise some measures of future preven- 
tion. 

The escape of criminals who are known, and the im- 
punity of those who might by proper search be made 
known and detected, present a consideration of extreme 
practical difficulty, because there is no mode in which 
the evil may be remedied that does not bring its own 
inconveniences. 

As the law now stands, it does not seem to be the ap- 



14 ATTORNEY GENERAL'S REPORT. Jan 

propriate duty of any particular person, in many cases 
that occur, to institute a criminal prosecution. The 
prosecuting officers, who are appointed to conduct such 
prosecutions after they are commenced^ have no official 
power to commence them. The first step in such a pro- 
cess is a complaint under oath, which must be made by 
some person in the character, and with the knowledge of 
a witness, and not an attorney, and whose testimony 
precedes all the duties of the Counsel of the Common- 
wealth. The very few cases in which these officers are 
authorized to file an Information, or Inquest of Office, 
never extend to felonies, and are too inconsiderable to be 
stated even as exceptions to the general rule. 

The complaint which a private citizen may or may not 
make at his pleasure, he either delays until pursuit would 
be useless, or altogether omits because of the personal in- 
convenience such a complaint may occasion, either by a 
tax on his time or by the odium of being considered an 
informer, or perhaps by the fear of injury from the ma- 
levolence of the criminal or his associates. 

Hence it is that crime often maintains an odious im- 
punity, and the criminal either boldly sets the laws at de- 
fiance, or escapes the dilatory movements that no public 
functionary is authorized to accelerate. 

In view of these obstacles to the operation of justice, 
an Association was formed by the Banking Corporations 
in Boston, and some others in the State, to put a stop to 
the alarming extent of the traffic in counterfeit bills. By 
the exertions of this confederacy, prosecutions in Suffialk, 
Essex and Middlesex were instituted, which, enumerating 
the persons severally who were implicated, and the sev- 
eral causes of complaint against them, cimounted in all to 
forty-nine. The results of these prosecutions as regards 



1834. HOUSE— No. 4. 15 

the parties accused, appear in their proper place in the 
annexed abstracts. By means of them there have been 
seized the plates upon which the counterfeited bills of 
the Suffolk, Washington, Columbian, and Franklin Banks 
in this State, and the Newport Bank in Rhode Island, 
were impressed, together with an amount of bills prepared 
for circulation, nominally exceeding twenty thousand dol- 
lars, and a large quantity of paper intended to make bills 
for a similar purpose. These bills are passable imitations 
of the stereotype Perkins plate. Some of them are here- 
unto appended, for the examination of the Legislature ; 
and a trunk containing the plates, and a large mass of 
bills of different sorts, I have caused to be deposited in 
the office of the Treasurer, for the inspection of such 
members as have curiosity to examine these productions 
of ingenious villany. 

The association pursued their meritorious labors beyond 
the limits of the United States, and were able to arrest 
in Canada twenty-five persons who were engaged in the 
manufacturing of this spurious paper, seven of whom have 
been convicted at Montreal, and there is good reason to 
expect that the others will receive a just retribution for 
their crimes. 

A similar association was formed during the autumn 
and winter of the past year, by public spirited citizens, to 
put down gaming by lotteries. To their exertions many 
of the prosecutions enumerated in this report are to be 
attributed, and by their disinterested efforts, the atten- 
tion of the public and of the Legislature was attracted to 
this demoralizing traffic, which the apt and rigorous pro- 
visions of a recent law have almost entirely exterminated. 
That these associations have greatly subserved the 
public interests, admits of no doubt. That the individual 



16 ATTORNEY GENERAL'S REPORT. Jan 

citizens who are concerned in them have liberally be- 
stowed much labor and money for the general benefit, is 
unquestionably true ; and that they deserve, in the present 
state of the law, the highest praise for their generous and 
disinterested exertions, no one, who knows the purity of 
their motives, and the intelligence by which their con- 
duct has been directed, can possibly deny : but whether 
in the department of criminal justice any operations, 
which require any thing more than individual effort, should 
not be chiefly under the direction of the responsible offi- 
cers of the Commonwealth, — and whether a wholesome 
economy is not best consulted by providing in the first 
instance, and placing under proper responsibility, such 
funds as the public service in these cases may require, 
are questions that deserve very grave consideration. 

All efforts not required by the laws, are of temporary 
character, and the energy of the first movement is com- 
monly followed by a remissness, v^^hich offers opportunity 
to crime. A constant, regular and equable supervision, 
most conduces to the public peace, and it is probably bet-- 
ter for the general interest that the government should, 
in every department, be able by its own means to dis- 
charge its duty to the people. 

When associations undertake, by agents of their own, 
to conduct the preliminary investigations, it is not among 
the most inconsiderable embarrassments to which the 
public officers are subjected, that they find offers have 
been made of favor to acknowledged criminals, on condi- 
tion that they reveal important information in the prose- 
cution of their confederates. 

To extend the protection of the government to a crim- 
inal, in consideration of services by him to be performed, 
whereby one knuivn offender is in fact pardoned, that 



1834. HOUSE— No. 4. 17 

another, or several who are suspected, may be put on 
trial, is among the highest and most delicate of official 
duties ; but it becomes one of exceeding perplexity when 
information is obtained from the criminal, and the price 
of his indemnity paid by him, before the officer of the 
public has been consulted in his case. When consulted, 
as finally he must be, it is true he may exercise his own 
discretion in ratifying or disaffirming the terms proposed, 
but there is then scarcely left to him any freedom of 
choice. 

In many cases the interest of public justice, on a large 
and com.prehensive scale, is not the same with the interest 
of prosecutors, and the testimony that may have been 
purchased for private advantage, by the impunity of an 
informer and criminal, must be paid for from the Treasury 
of the public, not merely by suffering an adroit and artful 
offender to escape, but by a costly and perhaps vexatious 
investigation of an accusation fraudulently made by him 
for the purpose of deception. 

1 beg not to be understood as suggesting that any case 
is known to me in which the most perfect uprightness 
and good faith has not been observed ; but it is the ten- 
dency of such associations quite as much to endanger the 
innocent, as to intimidate the guilty : nor is the excite- 
ment of the public mind, when produced by sudden ef- 
forts, well calculated to pursue with judgment and ability 
the train of inquiry which truth and justice may require. 

It would therefore be expedient to ascertain by the wis- 
dom of the Legislature, whether it is not better policy to 
dispense with the aid of such associations by preventing 
the necessity that gives occasion for their existence. 

The propriety of some arrangement of the kind sug- 
gested, may be ascertained from another consideration 
3 



18 ATTORNEY GENERAL'S REPORT. Jan 

It has been made known to me from various sources, 
and in a nianner that leaves me in no doubt of the truth 
of the statement, that a gang of adroit and bold felons 
have been and yet are congregated together, with a 
view to a common jDartnership in the products of their 
crimes ; and that the property they procure by their law- 
less depredations is transmitted to New York and made 
a fund, first for the indemnity of the associates by sup- 
pressing evidence, compounding felonies, buying off 
complainants and witnesses, and procuring such means 
as may be purchased, tor the security of the criminals, 
then for division among the members of the confede- 
racy, and for the rescue or support of such of their 
number as may be subjected to imprisonment. The 
facilities thus provided for the concealment of stolen 
property and the inducements which are offered to suf- 
ferers to forego a prosecution, become a premium on 
the commission of crime, and society is in consequence 
alarmingly exposed to the depredations of these desper- 
ate associates. A prompt interposition of the law by 
its authorized agents, and a control by its own officers 
over the means used to recover the property plundered, 
with a steady enforcement of the penalty where a con- 
viction can be obtained, are the guards which the se- 
curity of our citizens requires, while the police of the 
place that is from time to time made the head quarters 
of these depredators, will have need of increased vigi- 
lance and circumspection to defeat their artful machina- 
tions. 

To understand the extent of criminal jurisprudence 
exemplified in the returns hereunto annexed, they 
should be considered in connection with other circum- 
stances not apparent on the face of them. The number 



1834. HOUSE No. 2. 19 

of cases is not of itself an indication of the extent of 
the duty performed. Some of them demand no pre- 
vious preparation, others a great deal. Several of the 
smaller class may be finished in a day. Others con- 
sume much longer time. The Municipal Court for the 
City of Boston has been in session one hundred and 
twenty-seven days during the period of this report ; and 
the Grand Jury have been in session several days when 
the Court was adjourned. Nine hundred and forty-seven 
witnesses were examined before the Grand Jury. Four- 
teen days were occupied in the trial of three causc;S 
before the Jury in Court, two of which resulted in ac- 
quittals. The Attorney of the Middle District reports 
to me as the cause why so large a number ol cases 
stand continued that " the number and length of the 
trials which took place in the two last terms of the 
Court consumed the whole of the time which after the 
dismissal of the Grand Jury was occupied in trials at 
Bar." 

Questions of high public interest or great excitement 
among large classes of the community are brought into 
discussion in this department of jurisprudence. A 
more careful and elaborate mode of trying all causes 
and especially criminal causes has prevailed, and while 
by this critical exactness, a more perfect investigation 
and a more satisfactory result is obtained, and the se- 
curity of the innocent, which even beyond the punish- 
ment of the guilty, is the great object of the law, is 
thereby better preserved, the inevitable consequence is 
additional labor and increased expence. 

In submitting to the attention of the Legislature " such 
observations and statements as in my opinion the criminal 
jurisprudence and the proper and economical administra- 



20 ATTORNEY GENERAL'S REPORT. Jan 

tion of the criminal law of the Commonwealth shall war- 
rant and require," it might be my dutj to propose an en- 
tire revision of the criminal code now in force. Formed 
on the basis of the common law, which originated in days 
of comparative ignorance and barbarism, it has indeed 
been purified from the earlier severities of that cruel sys- 
tem, and made, from time to time, more conformable to the 
humanity and intelligence of the age; but in many of 
its forms, its technicalities, its rules of evidence and prac- 
tice, it still bears the marks of the source from which it 
sprang. A revision, so extensive as the interests of the 
people require, may not be lightly commenced, or even 
proposed. To be successful, it must be the work of 
many comprehensive, profound, and practical minds ; but 
its accomplishment would be a monument of imperishable 
glory, and consecrate the age which erected it, in the 
gratitude of mankind. 

Of a less extensive, but sufficiently important charac- 
ter to ask the attention of the Legislature, are those 
modifications which experience, or a more careful exami- 
nation, indicates to be convenient in the details of our 
system. 

In capital cases the party indicted is not put to plead 
at the Court to which the indictment is first returned, 
and of course not until after the Grand Jury are discharged 
from attendance. If new information, or any other cir- 
cumstance should make it desirable to change in any de- 
gree the form of the accusation, so as to make the alle- 
gation more nicely conform to the expected proof — as 
became necessary in the celebrated trials at Salem, in 
1830 — no power now exists by which such alteration can 
be made. 

The most strict adherence to forms, and the most per- 



1834. HOUSE— No. 4. 21 

feet technical accuracy are required in prosecutions of this 
high character, but it may be impossible to foresee and 
provide in every conceivable case for a plea in abatement, 
when the facts on which it rests may be known only to 
the defendant himself, and especially where so many 
subtleties and refinements may legally interrupt the cur- 
rent ot justice. The same observations will, to a certain 
extent, apply to all cases of indictment. 

In some very important particulars of this character, 
the English criminal code has been amended by several 
statutes in the reign of George 4th, and the necessity of 
a like provision is made more indispensable with us, in 
consequence of the anomalous manner of beginning a 
capital prosecution. Referring therefore to those statutes, 
I beg leave respectfully to submit this matter to the Le- 
gislature, as among those improvements which the proper 
administration of the criminal law of this Commonwealth 
warrants and requires. 

Another object of great practical importance is to se- 
cure to the Commonwealth a decision, by the Supreme 
Judicial Court, on matters of law, when the first impres- 
sion of the presiding Judge at the trial of the issue, may, 
in the huiry of the occasion, be adverse to the prosecu- 
tion — a right which the defendant always possesses, by 
the positive provisions of the statute. 

Equal and exact justice requires that this right should 
be reciprocal. Criminal cases often raise questions of 
civil personal rights, in which others besides the parties 
on the record, are deeply concerned. 

A recent case, in which the Mayor and Aldermen of 
the City of Boston were defendants, was of a character 
in which a large number of citizens felt themselves ag- 
grieved, and where the opinion of the Supreme Executive 



22 ATTORNEY GENERAL'S REPORT. Jan 

of the Commonwealth, acting in the sphere of official duty, 
and the decision of the learned Judge of the Municipal 
Court, on the trial, were directly at variance on a question 
of positive law. Another case, in regard to the duties of 
the City as a corporation, involving important civil rights 
to many of the inhabitants, was decided against the pros- 
ecution on a matter of law, which the Counsel of the 
Commonwealth could not carry to the Supreme Court. 
Other cases no doubt have occurred, or at least are liable 
to occur, producing the same consequences. 

It is believed to be practicable to make an alteration 
in the statute, which, while it shall be perfectly compat- 
ible with all the rights and immunities guaranteed to 
parties accused, may yet secure to complainants, and 
others equally aggrieved, a thorough examination of their 
rights. 

It is hardlv possible that a system of so much impor- 
tance, and of so great extent as the department of crimi- 
nal jurisprudence, will not be found by experience to 
require occasional amendment, the better to make it what 
it ought to be, " a terror to evil doers, and a praise and 
encouragement to such as do well." The matters now 
suggested, however important in themselves, bear a 
very small comparison to the great objects accomplished 
by the existing law, and prove how ably it was framed, 
and how thoroughly the subject was understood, when it 
received, two years since, the sanction of the Legislature. 
By their continued favor and liberality, it will do honor to 
the justice, the wisdom, and the humanity of the State. 

On the fourth day of June last, a subpoena was served 
on me, by the Marshal of the United States, for this Dis- 
trict, requiring the Commonwealth to appear, by counsel, 
before the Supreme Court of the United States, at Wash- 



1834. HOUSE— No. 4. 23 

ington, to answer to a bill filed by the State of Rhode Isl- 
and, in regard to the contiguous boundary of the two 
States. No proceedings beyond an order for the issuing 
of such subpoena, has been had in the Court of the Uni- 
ted States ; and it is not understood that any thing more 
will be done at the present term, than to make such pre- 
liminary arrangements as may be moved for. Accom- 
panying the subpoena, was a printed copy of the bill on 
forty-eight pages of closely printed letter press. 

In regard to that part of my duty, which enjoins me 
" to be always in attendance on the call of the Legisla- 
ture during their sessions," for such purposes as the stat- 
ute has enumerated, I have now the honor to await their 
commands. 

JAMES T. AUSTIN, 

Attorney General. 

January 1, 1834. 



24 ATTORNEY GENERAL'S REPORT. Jan 



OFFICIAL DUTIES 



ATTOR]\EY GE1\[ERAL, 



OCTOBER 31, 1832, TO OCTOBER 31, 1833, INCLUSIVE. 



xMIDDLESEX. 

Supreme Judicial Court — October Term, 1832. 

Commonwealth v^. David Lincoln, for Perjury. Indict- 
ed under former law. Acquitted. 

Commonwealth vs. David Hunter and others, for felling 
trees contrary to the statute of 1817, ch. 173. Com- 
menced as above. Defendants acquitted. 

Commonwealth vs, J. Shed. Arson second degree. 
Defendant convicted, and the case continued on his re- 
cognizance. Subsequently pardoned by the Governor 
and Council. 

SUFFOLK. 

Municipal Court — November, 1832. 

Commonwealth vs. Thomas P. Brown. Adultery. Ex- 
amination before the Grand Jury. The County 



1834. HOUSE— No. 4. 25 

Attorney having, before his appointment, been con- 
cerned in civil suits on the same subject. No bill. 

Supreme Judicial Court — November Term, 1832. 

Commonwealth vs. Daniel Davis. Murder. Tried in 
January, 1833. Acquitted. 

Commonwealth vs. James Jordan. Murder. Tried in 
January. Acquitted. 

Commonwealth vs. Susan Page. Accessary to the mur- 
der in the Indictment set forth against Jordan. After 
verdict in Jordan's case. NoL pros. 

Commonwealth vs. James Freeland, Samuel Campbell, 
Emanuel Currant, and William Ulmar, on a charge of 
Murder. 

The case of each of the above defendants was exam- 
ined separately by the Grand Jury ; and the two first 
named were dismissed. A bill for Manslaughter against 
the two others, was drawn, and returned to the Munici- 
pal Court. 

Commonwealth vs. Nathan Lang. Appellant from the 
Municipal Court, on an Indictment under the Lottery 
Law. Tried. Convicted. Case reserved on the Re- 
port of the Chief Justice. Motion for new trial made 
to the full Court in March, 1833. Motion overruled. 
Defendant sentenced to pay fine and costs, and 
committed to jail for non-payment. On 18th April, 
the Defendant obtained an order from the Police 
Court of the City of Boston, on the Attorney General, 
to appear and show cause why he should not be dis- 
charged. Case heard before all the Justices, who, 
4 



26 ATTORNEY GENERAL'S REPORT. Jan 

at that time, refused to interfere. Defendant subse- 
quently liberated according to law. 

Commonwealth by information vs. Proprietors of South 
Boston Bridge. Originally filed under an order of the 
Legislature. Continued. 

Commonwealth by information vs. the County Commis- 
sioners of Nantucket, and the Selectmen of said town, 
for an alleged deficiency of the County Jail, &c. No- 
tice ordered, and case continued. 

Commonwealth by information vs. Enoch Howes and an- 
other. Alleging the receipt by each of them of one 
thousand dollars prize money in a Lottery not estab- 
lished by the law of this Commonwealth, and claiming 
the said sums to be paid into the public Treasury, ac- 
cording to the provisions of the Statute. Notice or- 
dered. Continuedo 

Supreme Judicial Court March Term, 1833. 

Comsnonwealth vs. Joel Thayer. Arson, of a dwelling 
house in the night lime. Another indictment for Bur- 
glary. Another for Larceny. 

On the first capital charge he was tried and acquitted. 
The other indictments were thereupon dismissed, to re- 
move the prisoner into the Municipal Court, where he 
was indicted for the same offence, convicted and sen- 
tenced to five days solitary confinement and twenty 
years hard labor in the Slate Prison. 

Commonwealth ^'5. Joel Wilcut, Junr. Violating the 
Sepulchres of the Dead. Convicted. Sentenced to 
a fine of fiftydollars, and an imprisonment of five days. 



1834. HOUSE— No. 4. 27 

The misdemeanor here charged, remains within the 
exclusive jurisdiction of the Supreme Court. 

Commonwealth vs. Franklin Dexter. Bail of P. W. 
Gordon. Reported last year. Defendant had then 
confessed forfeiture, and prayed to be heard in Chan- 
cery. By leave of Court, this confession was with- 
drawn, and a Demurrer filed, which brings into ques- 
tion the validity of the ancient and usual forms of re- 
cognizance. 
The points raised by the Demurrer were argued. The 

case now awaits the decision of the Court. 

Commonwealth, by certiorari, on the motion of William 
Hopkins, a convict in the State Prison, under a judg- 
ment of the Supreme Judicial Court, rendered on an 
information filed in March, 1827. 

Commonwealth, by certiorari, on the motion of Richard 
Dick, a convict in the State Prison, under a judgment 
of the Supreme Judicial Court, rendered on an infor- 
mation filed in said Court in November, 1819. 
These several processes were instituted to procure a 
revision of the opinion of the Court in regard to the ap- 
plication of the laws for second and third sentences, as 
heretofore declared by the Court. After a full argu- 
ment and consideration of the cases, the Court reversed 
their former judgment, and granted a writ of Habeas 
Corpus, to bring up the bodies of the convicts, who were 
thereupon discharged from further imprisonment. 

Commonwealth, by certiorari, on the motion of George 
White, a convict in the State Prison, under a judg- 



28 ATTORNEY GENERAL'S REPORT. Jan 

ment of the Municipal Court, rendered on an informa- 
tion filed under like circumstances. 

Commonwealth, by certiorari, on the motion of Thomas 

Seymour, a convict as above. 

These cases conforming to the rule formerly estab- 
lished by the Supreme Court, and now reversed, the 
prisoners were found to be entitled to the benefit of the 
present construction of the law, and on Habeas Corpus, 
were discharged. 

Commonwealth, by certiorari, on the motion of Samuel 
Stevens, a convict in the State Prison, under a sen- 
tence passed on an information filed in the Municipal 
Court. 

The prisoner's case being examined, and found to 
diflfer from those of the above named convicts, he was 
remanded to the State Prison on the former judgment. 

In anticipation of some of the embarrassments con- 
nected with the convict laws, in relation to the State 
Prison, and the opinion which it was supposed might be 
given by the Supreme Court, the subject was noticed in 
the Attorney General's last report ; and the statute that 
was passed by the Legislature at the last session, will 
probably prevent similar difficulties in relation to con- 
victs sentenced subsequently to its date. But other 
cases involving intricate questions in regard to past le- 
gislation, are remaining, and are yet to be examined 
and decided. 



1834. HOUSE— No. 4. 29 

MIDDLESEX. 

Court of Common Pleas — June Term, 1 833. 

Commonwealth vs. Aaron Locke. Murder. Examina- 
tion by Grand Jury. Bill drawn, returned to Com- 
mon Pleas, and sent up to Supreme Judicial Court, 
according to the statute. 
This is the first capital case which comes entirely 

under the system of 1832. 

SUFFOLK. 

Police Court — 20ih and 22d July, and \st Augustc^ 1833. 

Commonwealth, on complaint of the Land Agent vs. 
Walter Janes and Benjamin Wiggin. Misdemeanor. 
Defendants discharged. 

HAMPSHIRE. 

Supreme Judicial Court. 

Commonwealth vs. Peter Ingraham. Continued as be- 
fore. 

Commonwealth vs. David Canada. Reported last year. 
Demurrer overruled. 

WORCESTER. 

Commonwealth vs. Moses B. Stephens. Law, on 
exceptions from Common Pleas. Peddling. Argued. 
Continued for advisement. 



30 ATTORNEY GENERAL'S REPORT. Jan 

MILEDDSEX. 

Commonwealth vs. Tarrant P. Merriam. Adultery. 
Law, on exceptions from Common Pleas. Argued. 
Continued for advisement. 

PLYMOUTH. 

Commonwealth vs. Sabin Blake On the License Law. 

Law on exceptions from Common Pleas. 

The points of Lavv, proposed for consideration in 
these exceptions, went to deny the constitutionality of 
the whole system of the License Laws. After entry, 
no counsel appearing to sustain the Bill of exceptions, 
it was dismissed. The Defendant had paid fine and 
costs. 

NORFOLK. 

Commonwealth vs. Edward Pray. License Law. In- 
dictment sustained. Defendant paid fine and costs. 

Commonwealth vs. Fisher A. Kingsbury. Administra- 
tor. 
This case, reported last year, has for its object, to 

obtain a sum of money for the Commonwealth now in 

the hands of, the Defendant, as Administrator of Jno. B. 

Lewis, who is supposed to have died without legal heirs. 
The British Consul having interposed a claim for 

further delay, the case was continued. 

The Attorney General has found it expedient in 
discharge of his public duties, to attend the Supreme 
Judicial Court in Suffolk and Essex in 1832, and in 
Nantucket, Hampden, Hampshire, Berkshire, Worcester, 



1834. HOUSE— No. 4. 31 

Plymouth, Norfolk, Middlesex, and Suffolk, in 1833, 
and the Common Pleas in Middlesex at the June term 
last. 

Of the other duties of the Attorney General I have to 
report. 

14th January, 1833. Opinion in writing delivered 
to His Excellency the Governor and the Honorable 
Council, in obedience to their order of the 10th, relative 
to the operation of the Statutes of 1789 and 1792 on 
the Treasurer's Bond. 

Attendance on the Committee of the Judiciary of the 
House of Representatives on 5th February and the oth- 
er days of their session, in relation to the application 
for ferry privileges in the harbor of Boston. An exposi- 
tion of the rights of the Commonwealth prepared, re- 
ported to the House, and printed by its order. 

Report in writing made through the special Commit- 
tee of the House on Lotteries, and printed by order. 

Report in writing to the joint Committee on Banks 
and Banking, on sundry questions of law. 

Draught of a Bill for the punishment of Convicts in 
the State Prison, to the Committee on the Judiciary. 

Report in writing to the Committee on Banks on other 
questions submitted. 

Examination of papers, and preparing others by di- 
rection of His Excellency the Governor, in reference to 
the law regarding the Warren Bridge. 



32 ATTORNEY GENERAL'S REPORT. Jan 

The general superintendence of the criminal depart- 
ment which the Statute enjoins upon the Attorney Gen- 
eral has been attended to, but the correspondence and 
other measures, which this part of his duty requires, are 
not deemed necessary to be stated in detail in an an- 
nual report. 



1834. HOUSE—No. 4. 33 



ABSTRACT OF THE REPORT 



SAMUEL D. PARKER, ESQ. 

Attorney for the Commonwealth ivithin the County of 

Suffolk, 

Of his Official business to the 31 Oct. 1833 inclusive, as made by him to the 

ATTORNEY GENERAL. 



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1834. HOUSE— No. 4. 37 



Of the foregoing persons convicted, there were sentenced to 
confinement to hard labor in the 

STATE PRISON, 



2 


for 


Life 


* 


1 


(( 


20 years. 


1 


(( 


8 




3 


(( 


7 




1 


(( 


6 




6 


(( 


5 




1 


u 


4 




9 


(( 


3 




32 


<( 


2 




14 


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1 




2 


(( 


18 months, 


1 


(( 


15 


u 


10 


11 


6 


;( 


1 


(( 


3 


(( 



84 



*One on a conviction within the year. See page 8. 



38 ATTORNEY GENERAL'S REPORT. Jan. 1834. 



ABSTRACT OF THE REPORT 



PLINY MERRICK, ESQ. 

Attorney for the Commonwealth for the Middle District, 
comprising the Counties of 

NORFOLK AND WORCESTER, 

Of his Official business to the 31 Oct., 1833, inclusive, as made by him to the 

ATTORNEY GENERAL. 



TABLE of Business conducted by the District Attorney of the Commonwealth 
for the Middle District. 





Cases to be Disposed of. How disposed of. 


2 
CAUSES OF COMPLAINT. | J- 

a o 


:= a. c o o 
pq < ^ H <! 


Convictions. 
1 Nolle Prosequi. 


3 
G 

a 
o 


Arson, 




2 


2 




Counterfeiting and Forgery, 




10 


9 19 J 


I 6 ] 


I 2 


Larceny, 




20 


4 24 ; 


3 14 


3 


Perjury, 




1 


1 


1 




Assault to Murder and other Felony, 




2 


1 3 


2 




Assault and Battery, 


1 


8 3 


6 18 


4 5 


3 


Adultery, 




3 


1 4 




3 


Fornication, 




1 


1 


1 




On the Victuallers' License Law, 


10 


14 


5 29 


2 19 


3 


On the Gaming Law, 




1 


1 


1 




On the Auction Law, 




1 


3 4 


1 




Fraud, 




4 


4 


2 


2 


Riot, 




3 


1 4 


1 


2 1 


Nuisance, 


15 


17 


9 41 


3 19 


5 5 


Peddling, 




5 


6 11 


5 




Trespass and Malicious Mischief, 


1 


3 


3 7 


3 


1 


Common Drunkards, 




6 


6 


1 5 




Official Misdemeanors, 




1 


1 2 


1 




Disturbing Public Worship, 




1 


1 


1 




Conspiracy, 






1 ] 






Contempt of Court, 




1 


1 


1 




Pound Breach, 




1 


1 




1 


Breaches of Peace and Threatening; 
Processes, 




2 


2 


1 1 

16 89 






27 


101 g 


50 187 


8 24 


Civil Actions and Writs of Scire Facias, 






4 




Total cases on this Abstract, 






191 






Deduct cases pending at date of last Re- 












port, 






27 






Total new cases since last Report, 






164 







40 ATTORNEY GENERAL'S REPORT. Jan 



Of the foregoing persons convicted, there were sentenced 
to confinement to hard labor in the 





STATE PRISON, 






2 . 


for . . . 


4} 


^ea 


1 


a 


3 


a 


6 . 


(( 


2 


a 


3 . 


u 


1 


(( 



12 



1834. HOUSE— No. 4. 41 



ABSTRACT OF THE REPORT 



CHARLES A. DEWEY, ESQ. 

Attorney for the Commonwealth for the Western District, 
comprising the Counties of 

HAMPSHIRE, HAMPDEN, FRANKLIN, AND 
BERKSHIRE, 

Of his OflScial business to the 31st Oct. 1833, inclusive, as made by him to the 

ATTORNEY GENERAL. 



42 



ATTORNEY GENERAL'S REPORT. Jan 



TABLE of Business conducted by the District Attorney of the Commonwealth, 
for the Western District, 





Case 


3 to be Disposed of. 


How disposed of. 


CAUSES OF COMPLAINT. 






03 

cS 

a. 

Q. 

< 


_Q2 

o 


S 
o 
H 


1 . 
to 

B 

c- 
< 


o 

■> 
s 
o 

O 


'3 
o 

S 
~5 


T3 
3 

c 
o 


Forgery, 




4 




2 


6 




3 




1 


Larceny, 


1 


38 




9 


48 


3 


35 




1 


Perjury, 








2 


2 










Adultery, 








1 


1 










On the Gaming Law, 




1 






1 








1 


On the Victuallers' License Law, 


3 


8 




5 


16 


1 


9 




1 


On the Lottery Law, 




2 






2 




1 


1 




On the Auction Law, 




2 




1 


3 








2 


Assault and Battery, 


2 


IB 


1 


10 


31 


3 


17 




1 


Riot, 


2 






1 


3 




1 


1 




Fraud, 




3 




1 


4 




2 




1 


Trespass and Malicious Mischief, 




1 


1 


4 


6 


1 


1 






Nuisance, 


7 


17 




20 


44 




12 


1 


11 


Common Drunkards, 






1 




1 








1 


Peddling, 




3 




4 


7 




3 






Disturbing Religious Worship, 




1 






1 








1 


Disturbing Town Meeting, 








1 


1 










Theatrical Exhibition, 








1 


1 










Official Misdemeanor, 








1 


1 










Breaches of Peace and Threatening; 




















Processes, 




5 


3 


63 


5 

184 

5 




5 








15 


103 


8 


89 


3 


21 


Writs of Scire Facias, 












Total cases on this Abstract, 










189 










Deduct cases pending at date of last Rep. 










15 










Total new cases since last Report, 










174 











1834. 



HOUSE~No. 4. 



43 



Of the foregoing persons convicted, there were sentenced to 
confinement to hard labor in the 





STATE PRISON, 


. . . for . . 


8 years 






u 


. 7 " 






(( 


. 3 " 






tt 


. 3 " 






u 


. 2 " 






(( 


. IJ " 






ii 


. . 1 " 


. 




. *' . , 


6 mont 



16 



44 ATTORNEY GENERAL'S REPORT. Jan 



ABSTRACT OF THE REPORT 



CHARLES H. WARREN, ESQ. 

Attorney for the Commonwealth for the Southern District, 
comprising the Counties of 

BRISTOL, PLYMOUTH, BARNSTABLE, DUKES 
COUNTY, AND NANTUCKET, 

Of his Official business to the 31st Oct. 1833, inclusive, as made by him to the 

ATTORNEY GENERAL. 



1834. 



HOUSE— No. 4. 



45 



TABLE of Business conducted by the District Attorney of the Commonwealth 
for the Southern District. 





Case 


3 to be Disposed of. 


IIow disposed of. 


CAUSES OF COMPLAINT. 


03 

'° 'o 

a o 
1— 1 




a. 


09 

c 


o 


CO 

'5 

cr 
o 

<5 


a' 

'> 

C 

o 
O 


cr 

03 
P 


73 
03 
3 


Manslaughter, 








1 


1 




Burglaiy, 




2 






2 




2 






Counterfeiting, 








1 


1 










Larceny, 




23 




14 


37 


1 


20 


1 


1 


Accessary to Larceny, 




I 






1 




1 






Perjury, 








1 


1 










Assault to Murder and other Felony, 




2 




1 


3 




2 






Adultery, 




2 




6 


8 




2 






Lascivious Cohabitation and Lewdness, 




3 




3 


6 




3 






On the Gaming Law, 




5 




1 


6 




3 




2 


On the Victuallers' License Law, 


4 


67 




20 


91 




26 


2 


43 


Assault and Battery, 




13 


8 


14 


35 


*4 


14 


3 




Riot and Affray, 


1 


3 




1 


5 




4 






Fraud, 




1 




1 


2 






1 




Libel, 




1 






1 




1 






Nuisance, 


4 


18 




6 


28 




6 


2 


14 


Conspiracy, 


1 








1 






1 




Trespass and Malicious Mischief, 


1 


1 






2 






2 




Official Misdemeanor, 




2 




1 


3 






j 


2 


Peddling, 








7 


7 










Quarantine Breach, 


1 








1 




1 


1 






12 


144 


8 


78 


242 


5 


85 


1262 


Writs of Scire Facias, none. 












Total cases on this Abstract, 










242 










Deduct cases pending 31st October, 
1832, 










12 










Total new cases since last Report, 











230 











46 ATTORNEY GENERAL'S REPORT. Jan 



Of the foregoing persons convicted, there were sentenced 
to confinement to hard labor in the 

STATE PRISON, 



1 


for 


15 years, 


2 


(( 


3 " 


1 


(( 


2 " 


7 


(( 


1 " 


1 


(( 


6 months. 



12 



The District Attorney of the Southern District re- 
ports, that in the discharge of the duties within describ- 
ed, he has necessarily travelled seven hundred miles. 



1834. HOUSE— No. 4. 47 



ABSTRACT OF THE REPORT 

OF 

x4SAHEL HUNTINGTON, ESQ. 

Attorney for the Commonwealth for the Northern District, 
comprising the Counties of 

ESSEX AND MIDDLESEX, 

Of his Official business to the 31st Oct. 1833, inclusive, as made by him to the 

ATTORNEY GENERAL. 



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1834 



HOUSE— No. 4. 



51 



Of the foregoing persons convicted, there were sentenced 
to confinement to hard labor in the 

STATE PRISON, 



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62 ATTORNEY GENERAL'S REPORT. Jan 



GENERAL. ABSTRACT 



REPORTS OF THE ATTORNEY GENERAL 

AND THE 

COUNTY AND DISTRICT ATTORNIES, 

Intended to shew the number of criminal complaints 
during the year ending October 31st, 1833; — the number 
of cases examined by Grand Juries, in which they returned 
no bills ; — the number of Indictments found ; — the manner 
in which the Indictments were disposed of, and the na- 
ture of the crimes which were the subjects of judicial 
animadversion during the foregoing period. 







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1834. 



HOUSE— No. 4. 



65 



GENERAL SUMMARY 



SENTENCES TO THE STATE PRISON. 



2 

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16 

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for 



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Life. 




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145 Convicts. 



bG. ATTORNEY GENERAL'S REPORT. Jan. 1834 



The remaining persons convicted, have been sentenced 
to confinement in the House of Correction or Common 
Jail or sentenced to pay a pecuniary fine with or without 
costs of prosecution, according to the aggravation of the 
offence and the penalty affixed thereto by statute. 

Amount of the gross sum of all the fines according to 
the judgments rendered, exclusive of costs taxed against 
the parties convicted, ^5,650, and exclusive of sums col- 
lected, or to be collected, on forfeited recognizances, 
which sums when collected, appear in the County Treas- 
urer's accounts. 



On a revision of the Report of the Attorney in Suf- 
folk, it appears that both the persons sentenced to the 
State Prison for life, were convicted of having in their 
possession ten similar forged bills in the similitude of 
bills issued by a Bank incorporated within this Common- 
wealth, the punishment of which offence is by statute 
imprisonment for life. The statements therefore on page 
8 and page 37 should be made to conform to this fact; — 
the tables havin«; been made on the supposition that one 
of the above was sentenced on the State Prison convict 
law. It therefore now appears that no person has been 
sentenced to imprisonment for life, in any case where 
the law entrusted a discretion to the Court. 



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