Commonwealth v. Fleckner

It is suggested, on behalf of the government, that the defendant’s exceptions cannot be entertained, because the sentence has been imposed and executed, under St. 1895, c. 469, §§ 1, 2. But the statute evidently contemplates the right to take and argue exceptions as remaining unaffected by its provisions. It does not say that no exceptions shall be prosecuted unless a stay of execution is granted, but, first, that sentence shall be imposed notwithstanding exceptions, (which of itself is consistent with the exceptions being argued afterwards, as has been the practice under Pub. Sts. c. 153, § 12, Commonwealth v. Clifford, 145 Mass. 97,) and next, that the allowing of exceptions shall not stay execution of sentence unless the justice imposing sentence, or some justice of the Supreme Judicial Court, shall file a certificate that there is reasonable doubt whether the judgment should stand. We should be slow to suppose that the Legislature meant to take away the right to undo the disgrace and legal discredit of a conviction, (Pub. Sts. c. 169, § 19,) merely because a wrongly convicted person has paid his fine or served his term. The fact that no indemnity is provided by this act is far from enough to lead us to that conclusion. Of course the payment of the fine in accordance with the sentence was not a consent to the sentence, but a payment under duress.

The evidence warranted the finding of the jury that the Turn Verein’s hall was a building or place used by a club for the purpose of dispensing intoxicating liquors to its members or others, within the meaning of St. 1887, c. 206, § 1. Commonwealth v. Baker, 152 Mass. 337. It is not necessary to prove that the place is used mainly for that purpose. Commonwealth v. Burke, 114 Mass. 261. This is the only question argued by the defendant bearing on the correctness of the ruling of the court, and we presume that this was the only question which it was desired that we should decide.

Exceptions overruled.