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USA Statutes : massachusetts
Title : PART IV. CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
Chapter : TITLE II. PROCEEDINGS IN CRIMINAL CASES
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Section 1. The justices of the supreme judicial court, of the superior court, and of district courts may cause all laws made for the preservation of the public peace to be kept; and in the execution of that power may require persons to give security to keep the peace, or for their good behavior, or both, as provided in this chapter.
Section 10. The justice sitting in the jury session may affirm the order or discharge the appellant, or may require him to enter into a new recognizance, with sufficient sureties, in such sum and for such time as it may order, and may make such order relative to the expenses of prosecution as is just and reasonable.
remaining in force Section 11. If the appellant fails to prosecute his appeal of an order of recognizance, his recognizance shall remain in full force and effect as to any breach of the condition, without an affirmation of the judgment or order of the court or justice, and shall also stand as security for any expenses of prosecution which the justice in the jury session may order the appellant to pay.
Section 12. A person committed for not finding sureties, or for refusing to recognize as required, may be discharged upon giving such security.
Section 13. Upon a breach of the condition of a recognizance taken pursuant to the provisions of sections four to eleven, inclusive, an action thereon shall be commenced by the district attorney in the court in which the recognizance is then on file.
presence of justice; recognizance to keep peace Section 14. Whoever, in the presence of a justice named in section one or before a court of record, makes an affray, or threatens to kill or beat another, or to commit any violence or outrage against the person or property of another, or contends with hot and angry words, to the disturbance of the peace, may be ordered, without process or any other proof, to recognize to keep the peace or be of good behavior for not more than three months, and in case of refusal may be committed as provided in section five.
Section 16. If, upon a suit brought on such recognizance, the penalty thereof is adjudged forfeited, the court may, upon petition of a defendant, remit such portion of it as it finds ought to be remitted.
discharge from liability; new recognizance Section 17. A surety in a recognizance to keep the peace, or for good behavior, or both, shall have the same authority and right to take and surrender his principal as if he were bail for him in a civil cause; and after such surrender shall be discharged from all liability for any act of the principal subsequent to such surrender which would be a breach of the condition of the recognizance. The person so surrendered may recognize anew with sufficient sureties for the residue of the term, and shall thereupon be discharged.
addition to sentence of imprisonment or probation; covered offenses Section 18. Whenever a person is convicted of a first offense under section 13B, 13F or 13H of chapter 265 or for a first offense for the attempt of any of the aforementioned crimes under section 6 of chapter 274, the district attorney, upon motion to the court, may request a hearing after conviction and before sentencing, to determine whether or not such person shall be committed, in addition to any term of imprisonment or probation authorized by said sections, to community parole supervision for life, to be served under the jurisdiction of the parole board as set forth in section 133D of chapter 127. Whenever a person is convicted of a first offense under section 22, 22A, 23, 24, 24B or 26 of said chapter 265, section 3 or 35A of chapter 272 or for a first offense for the attempt of any of the aforementioned crimes under said section 6 of said chapter 274, the elements of which are mitigated by certain circumstances, the defendant, upon motion to the court, may request a hearing after conviction and before sentencing to determine whether or not such person shall receive, in addition to a term of imprisonment or probation authorized by such sections, community parole supervision for life, to be served under the jurisdiction of the parole board as set forth in said section 133D of said chapter 127.
At such hearing, the defendant shall have the right to be represented by counsel, and, if financially unable to retain adequate representation, to have counsel appointed to him. The defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. A finding by the court that such person shall be committed to community parole supervision for life shall be supported by clear and convincing evidence.
In making a determination the judge shall, on the basis of any information which he can reasonably obtain, consider any mitigating or aggravating circumstances including, but not limited to, the defendant’s character, propensities, criminal record, the nature and seriousness of the danger posed to any person or the community and the nature and circumstances of the offense for which the defendant is convicted. If the judge finds, by clear and convincing evidence, that no reasons for community parole supervision for life to be served under the jurisdiction of the parole board, as set forth in section 133D of chapter 127, exist, the judge shall not impose community supervision for life on such first offender.
Whenever a person is convicted of a first offense under section 22, 22A, 23, 24, 24B or 26 of chapter 265, or section 3 or 35A of chapter 272 or for a first attempt of any of the aforementioned crimes under the provisions of section 6 of chapter 274, the district attorney may file a motion with the sentencing judge requesting that the defendant not receive community parole supervision for life, and upon receipt of such motion, the sentencing judge shall not impose community parole supervision for life on such first offender.
Section 2. If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.
Section 3. If, upon such examination, it is found there is just cause to fear that such crime may be committed, such court or justice shall issue a warrant, reciting the substance of the complaint, and requiring the officer to whom it is directed forthwith to apprehend the person complained of and take him before such justice or some other justice or court having jurisdiction of the cause. Such warrant, if issued by a justice, shall be under his hand.
Section 4. If the person complained of is convicted, he may be punished by a fine of not more than one hundred dollars or by imprisonment for not more than six months. Instead of imposing sentence, the court or justice may order the person complained of to enter into a recognizance, with sufficient sureties, in such sum as the court or justice orders, to keep the peace toward all the people of the commonwealth, and especially toward the person requiring such security, for such term, not exceeding six months, as the court or justice may order. The court or justice may, for good cause, revoke such order or reduce the amount of the recognizance, or order that it be taken without surety.
Section 5. If the person complained of so recognizes, he shall be discharged, but if he refuses or neglects so to do, he shall be committed to the jail or house of correction during the period for which he was required to give security, or until within that time he so recognizes, stating in the warrant the cause of commitment and the sum and time for which security was required.
Section 6. If, upon such examination, it is found that there is not just cause to fear that such crime will be committed by the person complained of, he shall be forthwith discharged; and if it is found that the complaint is unfounded, frivolous or malicious, the complainant may be ordered to pay the expenses of prosecution.
Section 7. If a person is required to give security to keep the peace or for his good behavior, the court or justice may order him to pay the expenses of prosecution, or any part thereof, and that he shall stand committed until they are paid or he is otherwise legally discharged.
Section 8. Whoever having waived jury trial in accordance with the provisions of section twenty-six A of chapter two hundred and eighteen is aggrieved by an order of the Boston municipal court or the district court, requiring him to recognize as provided aforesaid, may, upon giving the security required, appeal to the jury session designated pursuant to section twenty-seven A of chapter two hundred and eighteen for the conduct of jury trials in cases brought in the court wherein said order was made.
Section 9. The court or justice shall require such witnesses as may be necessary to support the complaint to recognize for their appearance at the jury session.
PROBATION SEARCH WARRANTS Chapter 276: Section 1. Complaint; warrant for designated property or articles; search incident to arrest; documentary evidence subject to privilege Section 1. A court or justice authorized to issue warrants in criminal cases may, upon complaint on oath that the complainant believes that any of the property or articles hereinafter named are concealed in a house, place, vessel or vehicle or in the possession of a person anywhere within the commonwealth and territorial waters thereof, if satisfied that there is probable cause for such belief, issue a warrant identifying the property and naming or describing the person or place to be searched and commanding the person seeking such warrant to search for the following property or articles:First, property or articles stolen, embezzled or obtained by false pretenses, or otherwise obtained in the commission of a crime;Second, property or articles which are intended for use, or which are or have been used, as a means or instrumentality of committing a crime, including, but not in limitation of the foregoing, any property or article worn, carried or otherwise used, changed or marked in the preparation for or perpetration of or concealment of a crime;Third, property or articles the possession or control of which is unlawful, or which are possessed or controlled for an unlawful purpose; except property subject to search and seizure under sections forty-two through fifty-six, inclusive, of chapter one hundred and thirty-eight;Fourth, the dead body of a human being.
Fifth, the body of a living person for whom a current arrest warrant is outstanding.
A search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings.
The word “property”, as used in this section shall include books, papers, documents, records and any other tangible objects.
Nothing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.
Notwithstanding the foregoing provisions of this section, no search and seizure without a warrant shall be conducted, and no search warrant shall issue for any documentary evidence in the possession of a lawyer, psychotherapist, or a clergyman, including an accredited Christian Science practitioner, who is known or may reasonably be assumed to have a relationship with any other person which relationship is the subject of a testimonial privilege, unless, in addition to the other requirements of this section, a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue. Nothing in this paragraph shall impair or affect the ability, pursuant to otherwise applicable law, to search or seize without a warrant or to issue a warrant for the search or seizure of any documentary evidence where there is probable cause to believe that the lawyer, psychotherapist, or clergyman in possession of such documentary evidence has committed, is committing, or is about to commit a crime. For purposes of this paragraph, “documentary evidence” includes, but is not limited to, writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films or papers of any type or description.
PROBATION REWARDS Chapter 276: Section 10. Rewards offered for detecting or securing persons committing certain offenses; determination of claims Section 10. The aldermen or the selectmen, if in their opinion the public good so requires, may offer a suitable reward of not more than five hundred dollars in any one case, to be paid by the town to any person who, in consequence of such offer, detects or secures a person who has committed a felony in such place, either before or after he has been charged therewith, and such reward shall be paid by the treasurer upon the warrant of the aldermen or selectmen. If more than one claimant applies for the payment of such reward, the aldermen or selectmen shall determine to whom it shall be paid, and if to more than one person, in what proportion to each, and their determination shall be final.
The aldermen or the selectmen may offer a reward of five hundred dollars for information leading to the arrest and conviction of a person making or circulating or causing to be made or circulated a false alarm of fire.
In a city, the mayor, with the approval of the city council or, in a town, the selectmen, may offer a reward of not more than five thousand dollars, in any one case, to be paid by the town or city to any person who, in consequence of such offer, detects or secures the arrest and conviction of a person who assassinates or attempts to assassinate a police officer employed by such city or town. Such reward shall be paid by the treasurer upon the warrant of the mayor or selectmen. If more than one claimant applies for the payment of such reward, the mayor or selectmen shall determine to whom it shall be paid, and if to more than one person, in what proportion to each, and said determination shall be final.
PROBATION PROBATION OFFICERS Chapter 276: Section 100. Detailed reports of probation work; records; accessibility of information Section 100. Every probation officer, or the chief or senior probation officer of a court having more than one probation officer, shall transmit to the commissioner of probation, in such form and at such times as he shall require, detailed reports regarding the work of probation in the court, and the commissioner of correction, the penal institutions commissioner of Boston and the county commissioners of counties other than Suffolk shall transmit to the commissioner, as aforesaid, detailed and complete records relative to all paroles and permits to be at liberty granted or issued by them, respectively, to the revoking of the same and to the length of time served on each sentence to imprisonment by each prisoner so released specifying the institution where each such sentence was served; and under the direction of the commissioner a record shall be kept of all such cases as the commissioner may require for the information of the justices and probation officers. Police officials shall co-operate with the commissioner and the probation officers in obtaining and reporting information concerning persons on probation. The information so obtained and recorded shall not be regarded as public records and shall not be open for public inspection but shall be accessible to the justices and probation officers of the courts, to the police commissioner for the city of Boston, to all chiefs of police and city marshals, and to such departments of the state and local governments as the commissioner may determine. Upon payment of a fee of three dollars for each search, such records shall be accessible to such departments of the federal government and to such educational and charitable corporations and institutions as the commissioner may determine. The commissioner of correction and the department of youth services shall at all times give to the commissioner and the probation officers such information as may be obtained from the records concerning prisoners under sentence or who have been released. The commissioner may use systems operated by the criminal history systems board, pursuant to sections one hundred sixty-seven to one hundred seventy-eight, inclusive, of chapter six, for any record-keeping lawfully required by him provided that such records remain subject to the regulations of said board.
PROBATION PROBATION OFFICERS Chapter 276: Section 100A. Requests to seal files; conditions; application of section; effect of sealing of records Section 100A. Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal such file. The commissioner shall comply with such request provided (1) that said person’s court appearance and court disposition records, including termination of court supervision, probation or sentence for any misdemeanor occurred not less than ten years prior to said request; (2) that said person’s court appearance and court disposition records, including termination of court supervision, probation or sentence for any felony occurred not less than fifteen years prior to said request; (3) that said person had not been found guilty of any criminal offense within the commonwealth in the ten years preceding such request, except motor vehicle offenses in which the penalty does not exceed a fine of fifty dollars; (4) said form includes a statement by the petitioner that he has not been convicted of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses, as aforesaid, and has not been imprisoned in any state or county within the preceding ten years; and (5) said person’s record does not include convictions of offenses other than those to which this section applies. This section shall apply to court appearances and dispositions of all offenses provided, however, that this section shall not apply in case of convictions for violations of sections one hundred and twenty-one to one hundred and thirty-one H, inclusive, of chapter one hundred and forty or for violations of chapter two hundred and sixty-eight or chapter two hundred and sixty-eight A.
In carrying out the provisions of this section, notwithstanding any laws to the contrary:1. Any recorded offense which was a felony when committed and has since become a misdemeanor shall be treated as a misdemeanor.
2. Any recorded offense which is no longer a crime shall be eligible for sealing forthwith, except in cases where the elements of the offense continue to be a crime under a different designation.
3. In determining the period for eligibility, any subsequently recorded offenses for which the dispositions are “not guilty”, “dismissed for want of prosecution”, “dismissed at request of complainant”, “nol prossed”, or “no bill” shall not be held to interrupt the running of the required period for eligibility.
4. If it cannot be ascertained that a recorded offense was a felony when committed said offense shall be treated as a misdemeanor.
When records of criminal appearances and criminal dispositions are sealed by the commissioner in his files, he shall notify forthwith the clerk and the probation officer of the courts in which the convictions or dispositions have occurred, or other entries have been made, of such sealing, and said clerks and probation officers likewise shall seal records of the same proceedings in their files.
Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions, except in imposing sentence in subsequent criminal proceedings.
An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ to an inquiry herein relative to prior arrests or criminal court appearances. In addition, any applicant for employment may answer ‘no record’ with respect to any inquiry relative to prior arrests, court appearances and adjudications in all cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution.
” The attorney general may enforce the provisions of this paragraph by a suit in equity commenced in the superior court.
The commissioner, in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority, shall in the case of a sealed record or in the case of court appearances and adjudications in a case of delinquency or the case of a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution, report that no record exists.
PROBATION PROBATION OFFICERS Chapter 276: Section 100B. Requests to seal delinquency files or records; conditions; sealing by commissioner; notice for compliance; effect of sealing; limited disclosure Section 100B. Any person having a record of entries of a delinquency court appearance in the commonwealth on file in the office of the commissioner of probation may, on a form furnished by the commissioner, signed under the penalties of perjury, request that the commissioner seal such file. The commissioner shall comply with such request provided (1) that any court appearance or disposition including court supervision, probation, commitment or parole, the records for which are to be sealed, terminated not less than three years prior to said request; (2) that said person has not been adjudicated delinquent or found guilty of any criminal offense within the commonwealth in the three years preceding such request, except motor vehicle offenses in which the penalty does not exceed a fine of fifty dollars nor been imprisoned under sentence or committed as a delinquent within the commonwealth within the preceding three years; and (3) said form includes a statement by the petitioner that he has not been adjudicated delinquent or found guilty of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses as aforesaid, and has not been imprisoned under sentence or committed as a delinquent in any state or county within the preceding three years.
When records of delinquency appearances and delinquency dispositions are sealed by the commissioner in his files, the commissioner shall notify forthwith the clerk and the probation officer of the courts in which the adjudications or dispositions have occurred, or other entries have been made, and the department of youth services of such sealing, and said clerks, probation officers, and department of youth services likewise shall seal records of the same proceedings in their files.
Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in delinquency or criminal proceedings.
Notwithstanding any other provision to the contrary, the commissioner shall report such sealed delinquency record to inquiring police and court agencies only as “sealed delinquency record over three years old” and to other authorized persons who may inquire as “no record”. The information contained in said sealed delinquency record shall be made available to a judge or probation officer who affirms that such person, whose record has been sealed, has been adjudicated a delinquent or has pleaded guilty or has been found guilty of and is awaiting sentence for a crime committed subsequent to sealing of such record. Said information shall be used only for the purpose of consideration in imposing sentence.
PROBATION PROBATION OFFICERS Chapter 276: Section 100C. Sealing of records or files in certain criminal cases; effect upon employment reports; enforcement Section 100C. In any criminal case wherein the defendant has been found not guilty by the court or jury, or a no bill has been returned by the grand jury, or a finding of no probable cause has been made by the court, the commissioner of probation shall seal said court appearance and disposition recorded in his files and the clerk and the probation officers of the courts in which the proceedings occurred or were initiated shall likewise seal the records of the proceedings in their files. The provisions of this paragraph shall not apply if the defendant makes a written request to the commissioner not to seal the records of the proceedings.
In any criminal case wherein a nolle prosequi has been entered, or a dismissal has been entered by the court, except in cases in which an order of probation has been terminated, and it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files. The clerk shall forthwith notify the commissioner of probation and the probation officer of the courts in which the proceedings occurred or were initiated who shall likewise seal the records of the proceedings in their files.
Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public employment in the service of the commonwealth or of any political subdivision thereof.
An application for employment used by an employer which seeks information concerning prior arrests or convictions of the applicant shall include in addition to the statement required under section one hundred A the following statement: “An applicant for employment with a sealed record on file with the commissioner of probation may answer ‘no record’ with respect to an inquiry herein relative to prior arrests or criminal court appearances.
” The attorney general may enforce the provisions of this section by a suit in equity commenced in the superior court.
The commissioner, in response to inquiries by authorized persons other than any law enforcement agency or any court, shall in the case of a sealed record report that no record exists. After a finding or verdict of guilty on a subsequent offense such sealed record shall be made available to the probation officer and the same, with the exception of a not guilty, a no bill, or a no probable cause, shall be made available to the court.
PROBATION PROBATION OFFICERS Chapter 276: Section 101. Annual report of commissioner to general court Section 101. The commissioner of probation shall make an annual report to the general court of the probation work of the courts for the year ending on December thirty-first preceding. The report shall include such information as the commissioner may consider useful, with his suggestions or recommendations.
PROBATION PROBATION OFFICERS Chapter 276: Section 101A. Establishment of uniform forms of blanks and records for use in district court probation offices Section 101A. The commissioner of probation shall establish uniform forms of blanks and records for use in the probation offices of the district courts, and, upon receipt of competitive bids, the state purchasing agent shall order, at the expense of the commonwealth, and maintain such supply of said forms as the commissioner of probation shall determine to be necessary to meet the requirements of all such offices. The commissioner of probation shall from time to time distribute to the district and juvenile courts such quantities of such forms as he shall, with the probation officers of those courts, determine to be necessary. No forms of blanks and records other than those established and furnished hereunder shall be used in such probation offices unless approved by said commissioner.
PROBATION PROBATION OFFICERS Chapter 276: Section 102. Effect of Secs. 98 to 101A on authority of courts Section 102. Sections ninety-eight to one hundred and one A, inclusive, shall not affect the authority of the courts to require the keeping by their probation officers of probation records in addition to those necessary to conform to forms of records and reports prescribed by the commissioner of probation nor the authority of the courts to approve expenses and disbursements relating to the probation system.
PROBATION PROBATION OFFICERS Chapter 276: Section 103. Notice to commissioner of appointment, removal, etc.
, of probation officer Section 103. Upon the appointment, removal, retirement, resignation, death, or leave of absence of a probation officer, the clerk of the court by which said probation officer was appointed shall notify forthwith the commissioner of probation of such appointment, removal, retirement, resignation, death, or leave of absence.
PROBATION EXTRA-TERRITORIAL ARREST ON FRESH PURSUIT Chapter 276: Section 10A. Authority of officer of another state to arrest felon Section 10A. Any member of a duly organized state, county or municipal peace unit of another state of the United States the laws of which contain provisions substantially equivalent to the provisions of this and the following section, who enters this commonwealth in fresh pursuit, and continues herein in such fresh pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state shall have the same authority to arrest and hold in custody such person as members of a duly organized state, county or municipal peace unit of this commonwealth have to arrest and hold in custody a person on the ground that he has committed a felony in this commonwealth. This section shall not be construed so as to make unlawful any arrest in this commonwealth which would otherwise be lawful.
PROBATION EXTRA-TERRITORIAL ARREST ON FRESH PURSUIT Chapter 276: Section 10B. Proceedings after arrest Section 10B. If an arrest is made in this commonwealth by an officer of another state in accordance with the provisions of the preceding section he shall without unnecessary delay take the person arrested before a justice, associate justice or special justice of a court of record in the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If such justice, associate justice or special justice determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of a rendition warrant by the governor of the state from which he fled. If such justice, associate justice or special justice determines that the arrest was unlawful he shall discharge the person arrested.
PROBATION EXTRA-TERRITORIAL ARREST ON FRESH PURSUIT Chapter 276: Section 10C. Partial invalidity Section 10C. If any part of sections ten A and ten B is for any reason declared void, it is declared to be the intent of said sections that such invalidity shall not affect the validity of the remaining portions of said sections.
PROBATION EXTRA-TERRITORIAL ARREST ON FRESH PURSUIT Chapter 276: Section 10D. Citation of law; uniform construction Section 10D. Sections ten A to ten C, inclusive, may be cited as the uniform extra-territorial arrest on fresh pursuit law, and shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the states which enact similar laws.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 11. Definitions Section 11. Wherever appearing in sections eleven to twenty R, inclusive, the term “governor” includes any person performing the functions of governor by authority of the law of this commonwealth, the term “executive authority” includes the governor, and any person performing the functions of governor, in any other state, the term “surrender” refers to the arresting and delivering up of a person in this commonwealth to the executive authority of another state, and the term “state”, referring to a state other than this commonwealth, refers to any other state or territory, organized or unorganized, of the United States.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 12. Arrest and delivery of accused to executives of another state; governor’s authority Section 12. Subject to the provisions of sections eleven to twenty R, inclusive, the controlling provisions of the constitution of the United States, and any and all acts of congress enacted in pursuance thereof, the governor may cause to be arrested and delivered up to the executive authority of any other state any person charged in such other state with treason, felony or other crime, or with having been convicted of a crime in such other state and having escaped from confinement or having broken the terms of his bail, probation or parole, who is found in this commonwealth.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 13. Surrendering accused not in demanding state at time of crime or leaving demanding state involuntarily Section 13. The governor may also surrender, on demand of the executive authority of any other state, any person in this commonwealth charged in such other state in the manner provided in section fourteen with committing an act in this commonwealth, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, hereafter in this section and in sections fourteen to twenty P, inclusive, referred to as the demanding state, and the provisions of sections eleven to twenty R, inclusive, not otherwise inconsistent shall apply to such cases, even though the accused was not in the demanding state at the time of the commission of the crime.
The governor may surrender, on demand of the executive authority of any other state, any person in this commonwealth charged in the demanding state in the manner provided in section fourteen with having violated its laws, even though such person left such state involuntarily.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 14. Written demand; allegations; accompanying papers; charge of crime; authentication of copies of papers Section 14. No demand for the interstate rendition of a person charged with crime in another state shall be recognized by the governor unless it be in writing alleging either that the person demanded was present in the demanding state at the time of the commission of the alleged crime, or that such person committed in this commonwealth or in a third state an act intentionally resulting in a crime in the demanding state, or that such person has escaped from confinement or has broken the terms of his bail, probation or parole, nor unless such demand is accompanied by a copy of an indictment found, or of an information supported by affidavit, in the demanding state, or by a copy of an affidavit made before a magistrate of such state, and by a copy of the warrant which was issued thereon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof in the demanding state. The indictment or information, or the affidavit made before the magistrate who issued the warrant, shall substantially charge the person demanded with having committed a crime under the law of the demanding state, and the copy of the indictment, information, affidavit, judgment of conviction or sentence shall be authenticated by the executive authority of such state.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 15. Investigation of demand and report to governor Section 15. When a demand shall be made upon the governor by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney general or any other prosecuting officer to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 16. Governor’s warrant of arrest; recital of facts Section 16. If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, sealed with the state seal and directed to an officer authorized to serve warrants in criminal cases or other person whom the governor may think fit to entrust with the execution thereof. Such warrant shall substantially recite the facts necessary to the validity of its issue.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 17. Arrest and delivery of accused; commanding aid Section 17. Such warrant shall authorize the person to whom it is directed to arrest the accused at any time and any place where he may be found within this commonwealth and to command the aid of all officers authorized to serve warrants in criminal cases or other persons in the execution thereof, and to deliver the accused, subject to the provisions of said sections eleven to twenty R, inclusive, to the duly authorized agent of the demanding state.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 18. Authority to command assistance; penalties for refusal Section 18. Every such person empowered to make an arrest shall have the same authority, in arresting the accused, to command assistance therein, as officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 19. Rights of arrested person; habeas corpus; notice; penalty Section 19. No person arrested upon such a warrant shall be delivered over to the agent whom the executive authority of the demanding state shall have appointed to receive him unless such person shall first be taken forthwith before a justice or special justice of a court of record of this commonwealth, who shall inform such person of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and, if the prisoner or his counsel shall state that he desires to test the legality of his arrest, such justice or special justice shall fix a reasonable time to be allowed the prisoner within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the attorney general and to the district attorney for the district in which the arrest is made and for the district in which the accused is in custody, and to said agent of the demanding state.
Any officer who shall deliver to said agent of the demanding state a person in his custody under the warrant of the governor, in wilful disobedience of the provisions of this section, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months, or both.
PROBATION SEARCH WARRANTS Chapter 276: Section 1A. Articles belonging to subversive organizations Section 1A. A justice of the superior court, upon application of the attorney general or a district attorney, and upon complaint on oath that the complainant believes that any of the property or articles hereinafter named are concealed in a particular house or place, if satisfied that there is a reasonable cause for such belief, may issue a warrant to search for the following property or articles: books, records, files, membership lists, funds, referred to in sections eighteen and twenty-one of chapter two hundred and sixty-four, or written or printed documents, paper or pictorial representations, referred to in section eleven of said chapter two hundred and sixty-four, belonging to a subversive organization as defined in said section eighteen, or used, provided for, or intended to be used for, the purposes specified in said section eleven.
PROBATION SEARCH WARRANTS Chapter 276: Section 2. Requisites of warrant Section 2. Search warrants shall designate and describe the building, house, place, vessel or vehicle to be searched and shall particularly describe the property or articles to be searched for. They shall be substantially in the form prescribed in section two A of this chapter and shall be directed to the sheriff or his deputy or to a constable or police officer, commanding him to search in the daytime, or if the warrant so directs, in the nighttime, the building, house, place, vessel or vehicle where the property or articles for which he is required to search are believed to be concealed, and to bring such property or articles when found, and the persons in whose possession they are found, before a court having jurisdiction.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20. Confinement of accused; expense; evidence of transportation to demanding state; new requisition Section 20. The officer or other person executing the governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner shall have been delivered, may when necessary confine the prisoner in a jail or other place of detention in any county, city or town through which he may pass; and the keeper of such jail or place of detention shall receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his journey, such officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner shall have been delivered following interstate rendition proceedings in another state, or to whom a prisoner shall have been delivered after waiving interstate rendition in another state, and who is passing through this commonwealth with such a prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in a jail or other place of detention in any county, city or town through which he may pass; and the keeper of such jail or other place of detention shall receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his journey, such officer or agent being chargeable with the expense of keeping; provided, that such officer or agent shall produce and show to such keeper satisfactory written evidence that he is actually transporting such prisoner to the demanding state pursuant to a requisition by the executive authority thereof, or that such prisoner has waived interstate rendition. No prisoner being transported pursuant to such a requisition or waiver shall be entitled to demand a new requisition while in this commonwealth.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20A. Warrant to apprehend on oath or affidavit; copies of papers attached Section 20A. Whenever any person within this commonwealth shall be charged, on the oath of any credible person before any court or justice in this commonwealth authorized to issue warrants in criminal cases, with the commission of any crime in any other state, including cases arising under section thirteen, or with having been convicted in such other state and having escaped from confinement or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any such court or justice in this commonwealth setting forth, on the affidavit of any credible person in another state, that a crime has been committed in such other state and that a person has been charged in such state with the commission of a crime, including cases arising under section thirteen, or with having been convicted of a crime in that state and having escaped from confinement or having broken the terms of his bail, probation or parole, and is believed to be in this commonwealth, such court or justice may issue a warrant directed to any officer authorized to serve warrants in criminal cases commanding him to apprehend the person named therein, wherever he may be found in this commonwealth, and bring him before the same or any other such court or justice convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit; and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20B. Arrest without warrant; taking accused before court or justice; complaint Section 20B. The arrest of a person may be lawfully made also by any officer authorized to serve warrants in criminal cases, without a warrant, upon reasonable information that the accused stands charged in another state with a crime punishable by death or by imprisonment for a term exceeding one year, but when so arrested the accused shall be taken with all practicable speed before a court or justice authorized to issue warrants in criminal cases and complaint shall be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20C. Commitment to permit arrest under warrant of governor on requisition Section 20C. If from the examination before such court or justice it appears that the person held is the person charged with having committed the crime alleged, including cases arising under section thirteen, or is the person charged with having been convicted of a crime and having escaped from confinement or having broken the terms of his bail, probation or parole, such court or justice shall, by a warrant reciting the accusation, commit him to a jail or house of correction for such time, not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor, on a requisition of the executive authority of the state having jurisdiction of the crime, unless the accused gives bail as provided in the following section, or until he shall be legally discharged.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20D. Bail Section 20D. Unless the offence with which the person arrested is charged is shown to be an offence punishable by death or life imprisonment under the laws of the state in which it was committed, such court or justice may admit such person to bail by bond or undertaking, with sufficient sureties, and in such sum as such court or justice deems proper, conditioned for his appearance before such court or justice, at a time specified in such bond or undertaking, and for his surrender to be arrested upon the warrant of the governor.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20E. Discharge; recommitment; bail Section 20E. If the accused has not been arrested under warrant of the governor at the expiration of the time specified in such warrant, bond or undertaking, such court or justice may discharge him or may recommit him for a further period of sixty days, or may again take bail for his appearance and surrender, as provided in the preceding section, but within a period not to exceed sixty days following the date of such new bond or undertaking.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20F. Forfeiture of bail Section 20F. If the accused is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond or undertaking, such court or justice, by proper order, shall declare the bond or undertaking forfeited and order his immediate arrest without warrant if he be within this commonwealth. Recovery may be had on such bonds or undertakings in the name of the commonwealth as in the case of other bonds or undertakings given by persons accused in criminal proceedings within this commonwealth.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20G. Prosecution pending in commonwealth Section 20G. If a criminal prosecution has been instituted against such person under the laws of this commonwealth and is still pending, the governor, in his discretion, may either surrender him on the demand of the executive authority of another state, or hold him until the final disposition of such prosecution or, if convicted and sentenced, until his discharge from imprisonment.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20H. Inquiry into guilt or innocence Section 20H. The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor, or in any proceeding after the demand for interstate rendition accompanied by a charge of crime in legal form as provided in section fourteen shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20I. Recall of warrant or issuance of another Section 20I. The governor, whenever he deems proper, may recall his warrant of arrest or may issue another warrant.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20J. Waiver of warrant and procedure, etc. Section 20J. Any person arrested in this commonwealth charged with having committed any crime in another state or with having been convicted in another state and having escaped from confinement or having broken the terms of his bail, probation or parole, may waive the issuance and service of the warrant provided for in sections sixteen and seventeen and all other procedure incidental to interstate rendition proceedings, by executing or subscribing in the presence of any court or justice of this commonwealth authorized to issue warrants in criminal cases a writing which states that he consents to return to the demanding state; provided, that if such waiver shall be executed or subscribed by such person it shall be the duty of such court or justice to inform such person of his rights to the issuance and service of a warrant in interstate rendition and to obtain a writ of habeas corpus as provided in section nineteen. If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor and filed therein. Such court or justice shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent of the demanding state, and shall deliver or cause to be delivered to such agent a copy of such consent; provided, that nothing in this section shall be deemed to limit the right of the accused person to return voluntarily and without formality to the demanding state, nor shall the foregoing waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this commonwealth.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20K. Warrant to receive accused and convey him to proper county; proceedings pending in another state Section 20K. Whenever the governor shall demand a person charged with crime in this commonwealth, or one charged with having been convicted in this commonwealth and having escaped from confinement or having broken the terms of his bail, probation or parole, from the chief executive of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia authorized to receive such demand under the laws of the United States, he may issue a warrant, under the seal of this commonwealth, to some agent, commanding him to receive the person so charged if delivered to him, and convey him to the proper officer of the county in which the crime was committed.
Whenever it is desired to have returned to this commonwealth a person charged herein with a crime, or with having been convicted in this commonwealth and having escaped from confinement or having broken the terms of his bail, probation or parole, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor may agree with the executive authority of such other state for the interstate rendition of such person before the conclusion of such proceedings or of his term of sentence in such other state, upon such conditions relative to the return of such person to such other state at the expense of this commonwealth as may be agreed upon between the governor and the executive authority of such other state.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20L. Application for requisition Section 20L. (a) Whenever the return to this commonwealth of a person charged with crime herein is required, the attorney general, or the district attorney for the district in which the crime is alleged to have occurred, shall present to the governor his written application for a requisition for the return of the person charged, in which application there shall be included a statement of the name of the person so charged and the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein, at the time the application is made, and a certificate that, in the opinion of the said attorney general or district attorney, the ends of justice require the arrest and return of the accused to this commonwealth for trial, and that the proceeding is not instituted to enforce a private claim.
(b) Whenever the return to this commonwealth is required of a person who has been convicted of a crime herein and has escaped from confinement or has broken the terms of his bail, probation or parole, the district attorney for the district in which the crime is alleged to have occurred, the parole board or the warden or superintendent of the institution from which escape was made, shall present to the governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, and the state in which he is believed to be, including the location of the person therein, at the time the application is made.
(c) The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or of the complaint made to a court or justice, stating the offence with which the accused is charged, or of the judgment of conviction or of the sentence. The attorney general, district attorney, parole board, warden or superintendent may also attach such further affidavits or other documents in duplicate as he or it may deem proper to be submitted with such application. One copy of the application, with the action of the governor indicated by endorsement thereon, and one of the certified copies of the indictment or complaint, or of the judgment of conviction or of the sentence shall be filed in the office of the state secretary to remain of record in that office. The other copies of all such papers shall be forwarded with the requisition of the governor.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20M. Payment of agent’s expenses Section 20M. If the application for a requisition for the return to this commonwealth of a person charged with crime herein, or for the return of a person who has been convicted of a crime herein and has escaped from confinement or has broken the terms of his bail, probation or parole, is complied with and an agent appointed, the account of such agent shall be paid like other expenses in criminal cases by the commonwealth.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20N. Service of process in civil action on accused; immunity Section 20N. A person brought into this commonwealth on, or after waiver of, interstate rendition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted or acquitted in the criminal proceeding, and, if acquitted, until he has had reasonable opportunity to return to the state from which he was brought by interstate rendition proceedings or upon waiver thereof.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20O. Trying for other crimes; immunity Section 20O. After a person has been brought into this commonwealth by interstate rendition proceedings or upon waiver thereof he may be tried herein for other crimes which he may be charged with having committed herein, as well as that specified in the requisition for his interstate rendition or in the waiver thereof.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20P. Waiver by commonwealth Section 20P. Nothing in sections eleven to twenty O, inclusive, shall be deemed to constitute a waiver by this commonwealth of its right, power or privilege to try any person demanded of it for a crime committed herein, or of its right, power or privilege to regain custody of such a person by interstate rendition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed herein, nor shall any proceeding under said sections which result in, or fail to result in, interstate rendition be deemed a waiver by this commonwealth of any of its rights, privileges or jurisdiction in any way whatsoever.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20Q. Partial validity Section 20Q. If any part of sections eleven to twenty P, inclusive, is for any reason declared void, such invalidity shall not affect the validity of the remaining portions of said sections.
PROBATION PROCEDURE ON INTERSTATE RENDITION Chapter 276: Section 20R. Citation of law; uniform construction Section 20R. Sections eleven to twenty R, inclusive, may be cited as the uniform criminal interstate rendition law, and shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of those states enacting similar laws.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 21. Justices may issue process Section 21. Justices of the supreme judicial, superior or district courts, may issue process for the apprehension of persons charged with crime and to carry into effect sections twenty-two to eighty-two, inclusive.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 22. Warrants, procedure for issuance Section 22. Upon complaint made to any justice that a crime has been committed, he shall examine on oath the complainant and any witnesses produced by him, reduce the complaint to writing, and cause it to be subscribed by the complainant, and, if it appears that a crime has been committed, shall issue a summons or warrant in compliance with the provisions of the Massachusetts Rules of Criminal Procedure.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 23. Service of warrants and other processes Section 23. Warrants and other processes issued for the apprehension of persons charged with crime may be directed to and served in any part of the commonwealth by an officer authorized to serve criminal process in any county. Such officer may command aid and exercise the same authority as if in his own county.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 23A. Warrant management system Section 23A. Whenever a court is requested to issue a warrant, the requesting authority shall provide to the court the person’s name, last known address, date of birth, gender, race, height, weight, hair and eye color, the offense or offenses for which the warrant is requested, a designation of the offense or offenses as felonies or misdemeanors, any known aliases and any such information as shall be required for a warrant to be accepted by the criminal justice information system maintained by the criminal history systems board. A warrant which contains the above information as provided by the individual for whom the warrant is being issued shall not be nullified if such information is later found to be inaccurate. An individual or law enforcement official seeking issuance of a warrant which does not contain all of the above required fields may apply to the clerk of the court for an exemption from this requirement. Such exemption shall be automatically granted upon the request of any law enforcement official or agency. No rights regarding the validity of a warrant may arise from such requirements not being met. Such information and the name of the police department responsible for serving the warrant shall be entered by the clerk’s office into a computer system to be known as the warrant management system. All warrants appearing in the warrant management system shall be accessible through the criminal justice information system, maintained by the criminal history systems board, to law enforcement agencies and the registry of motor vehicles. The warrant shall consist of sufficient information electronically appearing in the warrant management system, and a printout of the electronic warrant from the criminal justice information system shall constitute a true copy of the warrant. Such warrants appearing electronically in the warrant management system and, in turn, in the criminal justice information system, shall constitute notice and delivery of said warrants to the police department responsible for serving the warrant. Whenever a warrant is recalled or removed, the clerk’s office shall, without any unnecessary delay, enter the same in the warrant management system which entry shall be electronically transmitted to the criminal justice information system.
No law enforcement officer, who in the performance of his duties relies in good faith on the warrant appearing in the warrant management system and, in turn, the criminal justice information system, shall be liable in any criminal prosecution or civil action alleging false arrest, false imprisonment, or malicious prosecution or arrest by false pretense.
The issuing court shall provide notification, either before the issuance of a default or arrest warrant or no later than 30 days after the issuance of the warrant, to the subject of the warrant. Such notice shall contain the following information: the name and address of the issuing court, a description of the charge for which the warrant is being issued, a description of the method by which the individual may clear the warrant and a summary of the consequences the individual may face for not responding to the warrant. Such notice shall be deemed satisfactory if notice is mailed to the address stated on the warrant.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 23B. Annual list of persons registered with licensing authorities; criminal history systems board; outstanding warrants; notification of license suspension; hearing Section 23B. (a) Any agency, department, commission, division or authority of the commonwealth that issues a professional license, certificate, permit or authorization to engage in a profession, trade, or business shall ensure that such license, certificate, permit or authorization is suspended for a person who has a default or arrest warrant outstanding against him.
(b) In order to determine if a person has an outstanding warrant against him, the licensing authorities referenced in subsection (a) shall transmit to the criminal history systems board, in an electronic format and reporting schedule approved by the executive director of the criminal history systems board, a list of persons who are registered with such licensing authorities on an annual basis. The criminal history systems board shall, subject to appropriation, remit to each licensing authority a list of persons who have received a license, certificate, permit or authorization to engage in a profession, trade, or business against whom there is an outstanding default or arrest warrant issued by any court of the commonwealth. Evidence of the outstanding default or arrest warrant appearing in the warrant management system as established by section 23A shall be sufficient grounds for such suspension.
(c) Each licensing authority shall notify persons against whom there is a default or arrest warrant outstanding that their license, certificate, permit or authorization shall be suspended unless the person furnishes proof within 30 days that such warrant has been recalled or that there is no such warrant outstanding against the person. Such notification shall be deemed sufficient if the notice is mailed to the address listed on the license, certificate, permit or authorization or application for the license, certificate, permit or authorization. If no such proof is furnished within 30 days, the person shall be notified that such license, certificate, permit or authorization is suspended subject to the opportunity for a hearing. After such notice to the person has been delivered or mailed by the licensing authority, the person may request a hearing within 90 days with respect to the existence of an outstanding warrant. If a hearing is requested within ten days from the time the notice that the license, certificate, permit or authorization is suspended is mailed or delivered, the license, certificate, permit or authorization shall not be suspended until a finding following the hearing. If a hearing is requested as provided for in this chapter, the law enforcement agency responsible for the warrant shall be notified of the time, place, date of hearing and the subject of the warrant. An affidavit from the law enforcement agency responsible for the warrant or from the colonel of the state police may be introduced as prima facie evidence of the existence of a warrant without the need for members of that law enforcement agency to attend any hearings held under this section. The licensing authority shall issue a finding within 45 days of conducting the hearing as to the existence of a warrant. If there is a warrant outstanding, the license, certificate, permit or authorization shall be suspended. Said license shall not be renewed or reinstated without sufficient proof that the warrant has been cleared.
(d) For the purposes of this section, a professional license shall mean any license, permit, certificate, registration, authority or similar form of permission necessary to engage in a trade or profession issued by an agency, department, commission, division or authority of the commonwealth.
(e) The licensing authorities referenced in this section shall promulgate regulations to implement this section. Implementation of this section shall be subject to appropriation.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 24. Summons instead of warrant Section 24. Upon a complaint or indictment for any offense, a summons shall issue instead of a warrant, unless, in the judgment of the court or justice, there is reason to believe that the defendant will not appear upon summons.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 25. Summons fixing time for trial; service Section 25. A summons shall require the defendant to appear before the court at a stated time and place on the return day and shall be served by an officer authorized to serve criminal process by giving to the defendant in hand or by leaving at his dwelling house or last and usual place of abode with some person of suitable age and discretion then residing therein an attested copy not less than twenty-four hours before the return day, or by mailing an attested copy to the defendant’s last known address.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 26. Failure to appear and abide orders as contempt Section 26. If a defendant so summoned fails, without reasonable cause, to appear and abide the orders of the court or justice, he shall be considered in contempt of court, and may be punished by a fine of not more than twenty dollars. A warrant, if necessary, may be issued at any time after the issue of such summons, whether it has been served or not.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 27. Recognizance Section 27. If a defendant so summoned duly appears, he may be ordered to recognize for his further appearance but shall not be required to give surety upon his recognizance at any stage of the prosecution without a special order.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 28. Arrest without warrant Section 28. Any officer authorized to serve criminal process may arrest, without a warrant, and detain a person found in the act of stealing property in the presence of the officer regardless of the value of the property stolen and may arrest, without a warrant, and detain a person whom the officer has probable cause to believe has committed a misdemeanor by violating a temporary or permanent vacate, restraining, suspension and surrender,, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section three, three B, three C, four or five of chapter two hundred and nine A, section thirty-two of chapter two hundred and nine, or section fifteen or twenty of chapter two hundred and nine C. Said officer may arrest, without a warrant, and detain a person whom the officer has probable cause to believe has committed a misdemeanor involving abuse as defined in section one of chapter two hundred and nine A or has committed an assault and battery in violation of section thirteen A of chapter two hundred and sixty-five against a family or household member as defined in section one of chapter two hundred and nine A. Said officer may arrest and detain a person charged with a misdemeanor, without having a warrant for such arrest in his possession, if the officer making such arrest and detention shall have actual knowledge that a warrant then in full force and effect for the arrest of such person has in fact issued.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 29. Outstanding warrant check prior to release on bail or recognizance Section 29. Before a court releases, discharges or admits to bail any person brought before said court, in any criminal matter, the court shall first check the warrant management system to determine whether any warrant has been issued against the person in any jurisdiction of the commonwealth. If the warrant management system indicates that any warrant is outstanding, said court shall, if the outstanding offense is bailable pursuant to section fifty-seven, fifty-eight or fifty-eight A of this chapter, make a determination of bail as provided by said sections for each outstanding warrant.
If such person is released on bail or recognizance for an outstanding warrant, said court shall confer with the court that issued the outstanding warrant and, based thereon, specify in the warrant management system the date on which the person must appear before the issuing court and so notify the person. If such person is not released on bail or recognizance for an outstanding warrant, the person shall be transported by an officer, or in accordance with section twenty-four of chapter thirty-seven, or in accordance with any other law of the commonwealth, to the court that issued the warrant, or if the issuing court is not in session, to the jail in the county of the issuing court, and thereafter, to the next regular sitting of the court that issued the warrant.
A person arrested on a default warrant for a felony or a misdemeanor punishable by imprisonment for more than one hundred days may be released on bail or recognizance only by a justice of the court having jurisdiction over the place where the person was arrested or is being held, or by a justice of the court that issued the warrant.
No person authorized to admit to bail, including but not limited to judges or court personnel, and no sheriff or police officer shall release a person from custody before he determines by checking the warrant management system whether any warrant is outstanding in the commonwealth against said person; provided, however, that no person authorized to admit to bail, including but not limited to judges or court personnel, and no sheriff or police officer, who in the performance of his duties acts in good faith, shall be liable in any criminal prosecution or civil action where a person is released from custody before determining by checking the warrant management system whether a warrant is outstanding against said person in the commonwealth.
If a warrant is outstanding for a felony charge, or a misdemeanor punishable by imprisonment for more than one hundred days, the person being held shall be brought before the court having jurisdiction over the place where the person is held, or to the court that issued the warrant, and a justice, clerk or assistant clerk of said court shall make a determination of bail as provided in the first and second paragraphs of this section.
If a warrant is outstanding for a misdemeanor punishable by imprisonment for one hundred days or less, the person may be released on bail or recognizance by a person authorized to admit to bail. Such person authorized to admit to bail shall, without unnecessary delay, provide the clerk of the court that issued the warrant with notice of the fact that the person was admitted to bail. If the person held on such misdemeanor warrant is not released, the person shall be brought before the next session of the court having jurisdiction over the place where the person is held, or to the court that issued the warrant, and such court shall make a determination of bail as provided in the first and second paragraphs of this section.
PROBATION SEARCH WARRANTS Chapter 276: Section 2A. Form of warrant Section 2A. The warrant shall be in substantially the following form:THE COMMONWEALTH OF MASSACHUSETTS.
(COUNTY), ss. (NAME) COURT.
To the Sheriffs of our several counties, or their deputies, any State Police Officer, or any Constable or Police Officer of any city or town, within our said Commonwealth.
Proof by affidavit having been made this day before (name of person authorized to issue warrant) by (names of person or persons whose affidavits have been taken) that there is probable cause for believing that (certain property has been stolen, embezzled, or obtained by false pretenses; certain property is intended for use or has been used as the means of committing a crime; certain property has been concealed to prevent a crime from being discovered; certain property is unlawfully possessed or kept or concealed for an unlawful purpose).
We therefore command you in the daytime (or at any time of the day or night) to make an immediate search of (identify premises) (occupied by A.
B.
) and (of the person of A.
B.
) and of any person present who may be found to have such property in his possession or under his control or to whom such property may have been delivered, for the following property:(description of property)and if you find any such property or any part thereof to bring it and the persons in whose possession it is found before (court having jurisdiction) at (name of court and location).
Dated at (city or town) this __________ day of __________, (insert year).
Clerk.
PROBATION SEARCH WARRANTS Chapter 276: Section 2B. Affidavit in support of application for warrant; contents and form Section 2B. A person seeking a search warrant shall appear personally before a court or justice authorized to issue search warrants in criminal cases and shall give an affidavit in substantially the form hereinafter prescribed. Such affidavit shall contain the facts, information, and circumstances upon which such person relies to establish sufficient grounds for the issuance of the warrant. The person issuing the warrant shall retain the affidavit and shall deliver it within three days after the issuance of the warrant to the court to which the warrant is returnable. Upon the return of said warrant, the affidavit shall be attached to it and shall be filed therewith, and it shall not be a public document until the warrant is returned.
The affidavit in support of the application for a search warrant shall be in substantially the following form:THE COMMONWEALTH OF MASSACHUSETTS.
(COUNTY), ss. (NAME) COURT.
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, (insert year). I, (name of applicant) being duly sworn, depose and say:1. I am (describe position, assignment, office, etc.
)2. I have information, based upon (describe source, facts indicating reliability of source and nature of information; if based on personal knowledge and belief, so state).
3. Based upon the foregoing reliable information (and upon my personal knowledge) there is probable cause to believe that the property hereinafter described (has been stolen, or is being concealed, etc.
) and may be found (in the possession of A.
B. or any other person) at premises (identify).
4. The property for which I seek the issuance of a search warrant is the following: (here describe the property as particularly as possible).
Wherefore, I respectfully request that the court issue a warrant and order of seizure, authorizing the search of (identify premises and the persons to be searched) and directing that if such property or evidence or any part thereof be found that it be seized and brought before the court; together with such other and further relief that the court may deem proper.
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. Name. Then personally appeared the above named __________________ and made oath that the foregoing affidavit by him subscribed is true.
Before me this __________ day of __________, (insert year). Justice or Special Justice,Clerk or Assistant Clerkof the ________ Court. PROBATION SEARCH WARRANTS Chapter 276: Section 2C. Manner of issuing warrants; application of Secs. 2, 2A and 2B Section 2C. Search warrants issued pursuant to section two hundred and thirteen of chapter ninety-four, sections twenty and twenty-five of chapter one hundred and ten, section ten of chapter one hundred and thirty, shall be issued in the manner provided in sections two, two A and two B, in so far as they are applicable.
PROBATION SEARCH WARRANTS Chapter 276: Section 3. Seizure, custody and disposition of articles; exceptions Section 3. If an officer in the execution of a search warrant finds property or articles therein described, he shall seize and safely keep them, under the direction of the court or justice, so long as necessary to permit them to be produced or used as evidence in any trial. As soon as may be, thereafter, all property seized under clause First of section one shall be restored to the owners thereof; and all other property seized in execution of a search warrant shall be disposed of as the court or justice orders and may be forfeited and either sold or destroyed, as the public interest requires, in the discretion of the court or justice, except:(a) Diseased animals or carcasses thereof, or any tainted, diseased, corrupt, decayed or unwholesome meat, fish, vegetables, produce, fruit or provisions of any kind, or the meat of any calf killed when less than two weeks old, or any product thereof kept or concealed with intent to kill, sell or offer the same for sale for food, shall be destroyed or disposed of in accordance with section one hundred and forty-six of chapter ninety-four by the board of health or by an officer designated by the court or justice; and diseased animals found to have been kept or concealed in a particular building, place or enclosure shall be destroyed or disposed of by the division of animal health and department of food and agriculture without compensation to the owners thereof.
(b) Rifles, shotguns, pistols, knives or other dangerous weapons which have been found to have been kept, concealed or used unlawfully or for an unlawful purpose shall be forfeited to the commonwealth and delivered forthwith to the colonel of the state police for destruction or preservation in the discretion of the colonel of the state police.
(c) Money seized under clause Third of section one shall be forfeited and paid over to the state treasurer.
(d) Any property, including money seized under section one, the forfeiture and disposition of which is specified in any general or special law shall be disposed of in accordance therewith.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 30. Recall of default warrant; arrest Section 30. Notwithstanding any law, rule or regulation to the contrary, whenever a default warrant, issued in any jurisdiction in the commonwealth against any person, is recalled by a court, the court shall assess a fee of fifty dollars against the person in payment of the costs of recalling the warrant, except that upon a finding of good cause by the court the fee may be waived.
Any person arrested on a warrant issued because such person has forfeited or defaulted on his bail bond or recognizance or has been surrendered by a probation officer shall be required by the court to pay a fee of $75 payable to the city or town in which such arrest was effected, unless the judge finds that such person is indigent, in which case such person shall be required to perform one day of community service, unless the judge further finds that such person is physically or mentally unable to perform such service.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 31. Default warrants issued due to failure to pay fines, assessments, court costs, restitution, support payments, etc. to be noted in warrant management system Section 31. Whenever a court issues a default warrant solely due to the person’s failure to pay a fine, assessment, court cost, restitution, support payment or other amount as ordered by the court or required by law, the court shall specify the amount owed, including an additional assessment of $50 which assessment may be waived by the court upon a finding of good cause, with a statement that the warrant against the person may be discharged upon payment of the amount and the assessment, if any, and shall note the same in the warrant management system. The administrative office of the trial court shall accept payment of such fine, assessment, court cost, restitution, support payment or other amount as ordered by the court, along with any assessment, to be remitted by mail, telephone or other electronic means, in any form deemed acceptable by the trial court. Upon receipt of payment, the warrant against the person shall be discharged, the discharge shall be noted in the warrant management system and the individual shall receive notice of the discharge within seven days.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 32. Payment; release from custody Section 32. Whenever a person, brought before a court, against whom an outstanding warrant was issued, solely due to the failure of the person brought before the court to pay a fine assessment, court cost, restitution, support payment, or other amount, the court may accept payment of such amount and assess an additional fifty dollars which assessment may be waived by the court upon a finding of good cause and if the person is not being held on other process, the court may direct that the person be released from custody and shall notify the jurisdiction in which the warrant was issued of the payment and the assessment, if any. Upon notice of the release the court that issued the warrant shall recall the warrant and cause such information to be entered in the warrant management system.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 33. Examination of arrested persons for injuries; reports; penalty Section 33. Whenever a person is arrested for a crime and is taken to or confined in a jail, police station or lockup, the officer in charge thereof shall immediately examine the prisoner, and if he finds any bruises, cuts or other injuries shall forthwith make a written report thereof to the chief of police of the town concerned, or in Boston to the police commissioner, and in towns where there is no chief of police to the selectmen. The requirement that the prisoner be examined shall not be deemed to compel the removal of clothing. When a person is transferred from one place of confinement to another prior to his arraignment in court or to his release, the requirement that he shall be examined shall apply only to the place to which he is first taken after his arrest. Whoever violates this section shall be punished by a fine of not more than ten dollars.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 33A. Use of telephone in places of detention Section 33A. The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 34. Repealed, 1979, 344, Sec. 23 PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 35. Adjournments of examinations and trials Section 35. The court or justice may adjourn an examination or trial from time to time, and to the same or a different place in the county. In the meantime, if the defendant is charged with a crime that is not bailable, he shall be committed; otherwise, he may recognize in a sum and with surety or sureties to the satisfaction of the court or justice, or without surety, for his appearance for such examination or trial, or for want of such recognizance he shall be committed. While the defendant remains committed, no adjournment shall exceed thirty days at any one time against the objection of the defendant.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 36. Failure to appear; subsequent proceedings Section 36. If the recognizor does not appear according to his recognizance, the court or justice may issue process to bring him into court for trial. After his failure so to appear, the court or justice may at any time order his default recorded; but it may be removed for good cause at any time to which the case may be continued. If such default is not removed, the recognizance shall be certified with a record of such default to the superior court, and like proceedings shall be had thereon as upon a breach of the condition of a recognizance for appearance before said superior court, except in cases where bank books, bonds or money have been deposited at the time of the recognizance.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 37. Failure to recognize; subsequent proceedings Section 37. If the defendant fails to recognize, he may be committed to jail by an order stating concisely that he is committed for further examination on a future day to be named in the order, and on the day named he may be brought before the court or justice by a verbal order to the officer who made the commitment, or by a written order to a different person.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 37A. Assignment of counsel Section 37A. If a person is charged with a capital crime and brought before a district court for the initial appearance, the superior court may assign counsel upon his petition and upon certification of the charge to the superior court by the clerk of the district court. The examination shall thereupon be continued until the assignment of counsel has been made, and certification thereof received by the clerk of the district court, or until the petition for assignment of counsel has been otherwise disposed of. Upon a determination that a person accused of murder in the first or second degree is indigent, the chief counsel of the committee for public counsel services, or his designee, may assign the case to either the public counsel division or the private counsel division.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 38. Examination; assistance of counsel; waiver of indictment Section 38. The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution. Nothing contained herein shall be construed to prohibit the enforcement of the waiver provisions of Rule 3 of the Massachusetts Rules of Criminal Procedure. A defendant charged with an offense as to which he has the right to be proceeded against by indictment may elect a probable cause hearing in accordance with Rule 3 of the Massachusetts Rules of Criminal Procedure, but in such event shall be deemed to have waived his right to be proceeded against by indictment.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 39. Repealed, 1979, 344, Sec. 25 PROBATION SEARCH WARRANTS Chapter 276: Section 3A. Time for return of warrant Section 3A. Every officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event not later than seven days from the date of issuance thereof, with a return of his doings thereon; provided, however, that a justice of the superior court may at any time receive complaints and issue search warrants returnable in seven days before a district court named in such warrant and in that event the officer shall make his return to such district court as directed.
PROBATION SEARCH WARRANTS Chapter 276: Section 4. Notice before forfeiture of property Section 4. Before a decree of forfeiture of property seized under a search warrant is issued, the court or justice shall, unless otherwise expressly provided, issue a notice under seal, signed by the clerk of the court or by the justice, setting forth the substance of the complaint, and commanding the persons, if any, in whose possession the articles were found, and the owner, if alleged, and all other persons who claim an interest therein, to appear at a time and place therein named to show cause why the articles seized should not be forfeited.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 40. Testimony reduced to writing; signing by witnesses Section 40. The testimony of the witnesses examined shall be reduced to writing by, or under the direction of, the court or justice, if he considers it necessary, and shall, if required by him, be signed by the witnesses.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 41. Discharge of prisoner Section 41. If it appears, upon the whole examination, that no crime has been committed or that there is not probable cause for charging the prisoner therewith, he shall be discharged.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 42. Bail or commitment Section 42. If it appears that a crime has been committed and that there is probable cause to believe the prisoner guilty, the court or justice shall, if final jurisdiction is not exercised, admit the prisoner to bail, if the crime is bailable and sufficient bail is offered; otherwise, except as provided for in section sixteen of chapter one hundred and twenty-five, such prisoner shall be committed to jail for trial.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 42A. Personal recognizance; terms and conditions to protect persons suffering physical abuse Section 42A. Whenever a court issues a criminal complaint and the crime involves assault and battery, trespass, threat to commit a crime, nonsupport, or any other complaint which involves the infliction, or the imminent threat of infliction, of physical harm upon a person by such person’s family or household member as defined in section one of chapter two hundred and nine A, the court may, in lieu of or in addition to any terms of personal recognizance, and after a hearing and finding, impose such terms as will insure the safety of the person allegedly suffering the physical abuse or threat thereof, and will prevent its recurrence.
Such terms and conditions shall include reasonable restrictions on the travel, association or place of abode of the defendant as will prevent such person from contact with the person abused.
As part of the disposition of any criminal complaint, the court may establish such terms and conditions of probation as will insure the safety of the person who has suffered such abuse or threat thereof, and will prevent the recurrence of such abuse or threat thereof.
Such terms and conditions shall include reasonable restrictions on the travel, association or place of abode of the defendant as will prevent such person from all contact with the person abused; or the payment by the defendant to the person abused of monetary compensation for losses suffered as a direct result of the crime. Compensatory loss shall include, but not be limited to, loss of earnings or support, out-of-pocket losses for injuries sustained, moving expenses and reasonable attorneys fees.
In addition, the terms and conditions of either the probation or the disposition of the complaint may include, but not be limited to, referral of the defendant to a clinic, facility or professional for one or more examinations, diagnoses, counseling or treatment; requiring the defendant to report periodically to a probation officer; or release of the defendant to the custody of a residential treatment facility.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 43. Conveying prisoner through another county Section 43. If the journey from the town where the prisoner is held to the town where he is to be committed on the service of a mittimus can be made by railroad, the officer may convey the prisoner through any portion of another county in the prosecution of such journey.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 44. Fees and expenses in district court in record sent to superior court Section 44. If the defendant is held to appear before the superior court, the copies and record of proceedings sent to the superior court shall contain the details of all fees and expenses allowed or paid in the district court.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 45. Witnesses bound by recognizance Section 45. If the prisoner is admitted to bail or is committed, the court or justice shall bind by recognizance the material witnesses against the prisoner to appear and testify at the next sitting of the court having jurisdiction of the crime and in which the prisoner is held to answer.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 46. Witnesses bound by recognizance on adjournment Section 46. If the examination or trial of a defendant charged with a felony is adjourned under section thirty-five, the court or justice may bind by recognizance the principal witnesses against the prisoner to appear and testify at the time and place to which the trial or examination is adjourned.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 47. Sureties with recognizance Section 47. The court, if satisfied that there is good cause to believe that a witness will not perform the condition of his recognizance unless other security is given, may order the witness to enter into a recognizance with such sureties as the court deems necessary for his appearance at court; provided that the witness shall be entitled to be present and to be represented by counsel at a hearing before the court, at which hearing the witness shall be entitled to be heard on the issue of the alleged materiality of his testimony, and on the issue of recognizance with or without surety.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 48. Recognizances for minor witnesses Section 48. If a minor is a material witness, any other person may be allowed to recognize for his appearance; or, in the discretion of the court or justice, he may recognize in a sum not exceeding fifty dollars, which shall be valid and binding in law, notwithstanding his minority.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 49. Commitment of witnesses; discharge upon recognizance Section 49. A witness who, when required, refuses to recognize, either with or without sureties, shall, except as provided in the following section, be committed to jail until he complies with such order or is otherwise discharged; but if the court or justice finds that the witness, unless he is the prosecutor or an accomplice, is unable to procure sureties when so ordered, he shall, except in cases of felony, be discharged upon his own recognizance. Upon a complaint or indictment for a felony, against a defendant not in custody, a material witness committed for failure to furnish sureties upon his own recognizance may be held in custody for a reasonable time, pending the pursuit and apprehension of the defendant.
PROBATION SEARCH WARRANTS Chapter 276: Section 5. Service of notice Section 5. The notice shall, not less than fourteen days before the time appointed for trial, be served upon the person, if any, alleged to be the owner of the articles seized, by an officer authorized to serve criminal process, by leaving an attested copy thereof with him personally or at his usual place of abode and by posting an attested copy thereof on the house or building in which the articles were seized, if they were found in a house or building; otherwise, in a public place in the town where they were seized.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 50. Repealed, 1979, 344, Sec. 25 PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 51. Release of committed witnesses; proceedings Section 51. If a witness has been committed because of his inability to furnish sureties for his appearance before the superior court, the jailer shall forthwith give notice to the chief justice of the superior court, who shall direct the district attorney to inquire as to the importance of his testimony and the necessity for detaining him in jail, and the district attorney, if in his opinion the public interest will not suffer by the release of the witness on his own recognizance, shall so report to the chief justice, who may thereupon order the witness to be released upon his own recognizance.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 52. Rules regulating treatment of committed witnesses; removal to another county Section 52. The commissioner of correction shall from time to time make such rules relative to the diet, size of cells, amount of liberty and exercise, correspondence, visits and such other matters as he considers necessary regulating the treatment of witnesses held in jail as will secure their clear distinction and separation from other prisoners so far as possible, consistent with their safe custody and the prevention of tampering with their testimony. Said commissioner may, with the approval of the district attorney, remove such witnesses from the jail where they are confined to a jail in another county, and shall, at the request of the district attorney, cause them to be returned to the jail whence they were removed. The proceedings for such removal shall be the same as for the removal of prisoners from one jail or house of correction to another. The cost of support of a witness so removed and of both removals shall be paid by the county whence he is removed.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 52A. Removal of accused person to another county or to a correctional institution; return; proceedings; costs Section 52A. Persons held in jail for trial may, with the approval of the district attorney, and shall, by order of a justice of the superior court, be removed by the commissioner of correction to a jail in another county, and said commissioner shall, at the request of the district attorney, cause them to be returned to the jail whence they were removed. In addition, such persons, if they have been previously incarcerated in a correctional institution of the commonwealth under sentence for a felony, may, with the approval of the district attorney, be removed by the commissioner of correction to a correctional institution of the commonwealth, and said commissioner shall, at the request of the district attorney, cause them to be returned to the jail where they were awaiting trial. The proceedings for such removals shall be the same as for the removal of prisoners from one jail or house of correction to another. The cost of support of a person so removed and of the removals shall be paid by the county whence he is originally removed.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 53. Transporting male and female prisoners Section 53. An officer who, having the custody or control of prisoners, causes or permits male and female prisoners to be transported together to or from a court in a vehicle, in a city of more than thirty thousand inhabitants according to the latest census, shall be punished by a fine of not more than twenty dollars.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 54. Handcuffing committed witnesses to accused persons; transporting together Section 54. An officer who, having the custody of a witness committed because of his failure to furnish sureties, causes or permits him to be handcuffed to a person, held in custody, charged with or sentenced for crime, or to be transported within a city to or from any court or prison in a vehicle with such person, shall be punished by a fine of not more than twenty dollars.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 55. Discharge upon acknowledgment of satisfaction for injury Section 55. If a person committed to jail is under indictment or complaint for, or is under recognizance to answer to, a charge of assault and battery or other misdemeanor for which he is liable in a civil action, unless the offence was committed by or upon a sheriff or other officer of justice, or riotously, or with intent to commit a felony, and the person injured appears before the court or justice who made the commitment or took the recognizance, or before which the indictment or complaint is pending, and acknowledges in writing that he has received satisfaction for the injury, the court or justice may in its or his discretion, upon payment of such expenses as it or he shall order, discharge the recognizance or supersede the commitment, or discharge the defendant from the indictment or complaint, and may also discharge all recognizances and supersede the commitment of all witnesses in the case.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 56. Filing of order; delivery to jail keeper; discharge as bar to civil action Section 56. Such order discharging the recognizance, indictment or complaint of the person or the recognizance of witnesses shall be filed in the office of the clerk before the sitting of the court at which they are bound to appear; and such order superseding the commitment of the person charged or of a witness shall be delivered to the keeper of the jail where he is confined, who shall forthwith discharge him; and such order, so filed and delivered, shall forever bar a civil action for such injury.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 57. Officials authorized to admit to bail; amount of bail; security Section 57. A justice of the supreme judicial or superior court, a clerk of courts or the clerk of the superior court for criminal business in the county of Suffolk, a standing or special commissioner appointed by either of said courts or, in the county of Suffolk, by the sheriff of said county with the approval of the superior court, a justice or clerk of a district court, a master in chancery, upon application of a prisoner or witness held under arrest or committed, either with or without a warrant, or held in the custody of an officer under a mittimus, may inquire into the case and admit such prisoner or witness to bail if he determines that such release will reasonably assure the appearance of the person before the court and will not endanger the safety of any other person or the community; and may admit to bail any person committed for not finding sureties to recognize for him. All persons authorized to take bail under this section shall be governed by the rules established by the supreme judicial or superior court. No person offering himself as surety shall be deemed to be insufficient if he deposits money of an amount equal to the amount of the bail required of him in such recognizance, or a bank book of a savings bank, credit union or of a savings account in a trust company or national bank, or a passbook or paid-up shares of a co-operative bank doing business in the commonwealth, properly assigned to the clerk with whom the same is or is to be deposited, and his successors, and satisfactory to the person so authorized to take bail, or deposits non-registered bonds of the United States or of the commonwealth or of any county, city or town within the commonwealth equal at their face value to the amount of the bail required of him in such recognizance. The sheriff of Suffolk county may, with the approval of the superior court, appoint standing or special commissioners to take bail to a number not exceeding twenty and may, with like approval, remove them.
Notwithstanding the foregoing, a person arrested and charged with a violation of an order or judgment issued pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, four or five of chapter two hundred and nine A, or section fifteen or twenty of chapter two hundred and nine C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section one of said chapter two hundred and nine A while an order of protection issued under said chapter two hundred and nine A was in effect against said person, shall not be released out of court by a clerk of courts, clerk of a district court, bail commissioner or master in chancery.
Before the amount of bail of a prisoner charged with an offence punishable by imprisonment for more than one year is fixed in court, the court shall obtain from its probation officer all available information relative to prior criminal prosecutions, if any, of the prisoner and the disposition of each of such prosecutions. If the offence with which such a prisoner is charged is a violation of any provision of sections twenty-two to twenty-four, inclusive, of chapter two hundred and sixty-five or section thirty-four or thirty-five of chapter two hundred and seventy-two, and it appears from such information or otherwise that he had been previously prosecuted for a violation of any such provision, the court shall, before the amount of bail is fixed, obtain from the department of mental health a report containing all information in its possession relative to the prisoner, particularly with respect to any mental disease or defect with which he may have been afflicted; and said department shall furnish any such report to the court promptly upon its request.
No person arrested for violating any provision of section thirty-three or thirty-five of chapter fifty-six shall be admitted to bail unless there is deposited not less than five hundred dollars in cash, or there is offered real estate of the fair market value of not less than one thousand dollars, over and above all encumbrances, as security.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 58. Release on personal recognizance or unsecured appearance bond; determination; fees; refusal; petition for review Section 58. A justice or a clerk or assistant clerk of the district court, a bail commissioner or master in chancery, in accordance with the applicable provisions of section fifty-seven, shall, when a person is held under arrest or committed either with or without a warrant for an offense other than an offense punishable by death, or, upon the motion of the commonwealth, for an offense enumerated in section fifty-eight A or for any offense on which a warrant of arrest has been issued by the superior court, hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail on his personal recognizance without surety unless said justice, clerk or assistant clerk, bail commissioner or master in chancery determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person before the court. In his determination under this section as to whether release will reasonably assure the appearance of the person before the court, said justice, clerk or assistant clerk, bail commissioner or master in chancery shall, on the basis of any information which he can reasonably obtain, take into account the nature and circumstances of the offense charged, the potential penalty the person faces, the person’s family ties, financial resources, employment record and history of mental illness, his reputation and the length of residence in the community, his record of convictions, if any, any illegal drug distribution or present drug dependency, any flight to avoid prosecution or fraudulent use of an alias or false identification, any failure to appear at any court proceeding to answer to an offense, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve abuse as defined in section one of chapter two hundred and nine A, or violation of a temporary or permanent order issued pursuant to sections eighteen or thirty-four B of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four or five of chapter two hundred and nine A, or sections fifteen or twenty of chapter two hundred and nine C, whether the person has any history of orders issued against him pursuant to the aforesaid sections, whether he is on probation, parole, or other release pending completion of sentence for any conviction, and whether he is on release pending sentence or appeal for any conviction. The person authorized to admit the person to bail shall provide as an explicit condition of release for any person admitted to bail pursuant to this section or section fifty-seven that, should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with the third paragraph of this section. If the justice or clerk or assistant clerk of the district court, the bail commissioner or master in chancery determines that a cash bail is required, the person shall be allowed to provide an equivalent amount in a surety company bond.
A person, before being released on personal recognizance without surety, shall be informed by the person authorized to admit such person to bail of the penalties provided by section eighty-two A if he fails without sufficient excuse to appear at the specified time and place in accordance with the terms of his recognizance. A person authorized to take bail may charge the fees authorized by section twenty-four of chapter two hundred and sixty-two, if he goes to the place of detention of the person to make a determination provided for in this section although said person is released on his personal recognizance without surety. Said fees shall not be charged by any clerk or assistant clerk of a district court during regular working hours.
A person aforesaid charged with an offense and not released on his personal recognizance without surety by a clerk or assistant clerk of the district court, a bail commissioner or master in chancery shall forthwith be brought before the next session of the district court for a review of the order to recognize in accordance with the standards set forth in the first paragraph of this section. The court shall provide as an explicit condition of release for any person admitted to bail pursuant to this section or section fifty-seven that should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with this paragraph and the court shall enter in writing on the court docket that the person was so informed and the docket shall constitute prima facie evidence that the person was so informed. If a person is on release pending the adjudication of a prior charge, and the court before which the person is charged with committing a subsequent offense after a hearing at which the person shall have the right to be represented by counsel, finds probable cause to believe that the person has committed a crime during said period of release, the court shall then determine, in the exercise of its discretion, whether the release of said person will seriously endanger any person or the community. In making said determination, the court shall consider the gravity, nature and circumstances of the offenses charged, the person’s record of convictions, if any, and whether said charges or convictions are for offenses involving the use or threat of physical force or violence against any person, whether the person is on probation, parole or other release pending completion of sentence for any conviction, whether he is on release pending sentence or appeal for any conviction, the person’s mental condition, and any illegal drug distribution or present drug dependency. If the court determines that the release of said person will seriously endanger any person or the community and that the detention of the person is necessary to reasonably assure the safety of any person or the community, the court may revoke bail on the prior charge and may order said person held without bail pending the adjudication of said prior charge, for a period not to exceed sixty days. The hearing shall be held upon the person’s first appearance before the court before which the person is charged with committing an offense while on release pending adjudication of a prior charge, unless that person, or the attorney for the commonwealth, seeks and the court allows, a continuance because a witness or document is not immediately available. Except for good cause, a continuance on motion of the person shall not exceed seven days and on motion of the attorney for the commonwealth may not exceed three business days. During such continuance, the person may be detained consistent with the provisions of this section. Said order shall state in writing the reasons therefor and shall be reviewed by the court upon the acquittal of the person, or the dismissal of, any of the cases involved. A person so held shall be brought to trial as soon as reasonably possible. A person aggrieved by the denial of a district court justice to admit him to bail on his personal recognizance without surety may petition the superior court for a review of the order of the recognizance and the justice of the district court shall thereupon immediately notify such person of his right to file a petition for review in the superior court. When a petition for review is filed in the district court or with the detaining authority subsequent to petitioner’s district court appearance, the clerk of the district court or the detaining authority, as the case may be, shall immediately notify by telephone, the clerk and probation officer of the district court, the district attorney for the district in which the district court is located, the prosecuting officer, the petitioner’s counsel, if any, and the clerk of courts of the county to which the petition is to be transmitted. The clerk of the district court, upon the filing of a petition for review, either in the district court or with the detaining authority, shall forthwith transmit the petition for review, a copy of the complaint and of the record of the court, including the appearance of the attorney, if any is entered, and a summary of the court’s reasons for denying the release of the defendant on his personal recognizance without surety to the superior court for the county in which the district court is located, if a justice thereof is then sitting, or to the superior court of the nearest county in which a justice is then sitting; the probation officer of the district court shall transmit forthwith to the probation officer of the superior court, copies of all records of the probation office of said district court pertaining to the petitioner, including the petitioner’s record of prior convictions, if any, as currently verified by inquiry of the commissioner of probation. The district court or the detaining authority, as the case may be, shall cause any petitioner in its custody to be brought before the said superior court on the same day the petition shall have been filed, unless the district court or the detaining authority shall determine that such appearance and hearing on the petition cannot practically take place before the adjournment of the sitting of said superior court for that day and in which event, the petitioner shall be caused to be brought before said court for such hearing during the morning of the next business day of the sitting of said superior court. The district court is authorized to order any officer authorized to execute criminal process to transfer the petitioner and any papers herein above described from the district court or the detaining authority to the superior court, and to coordinate the transfer of the petitioner and the papers by such officer. The petition for review shall constitute authority in the person or officer having custody of the petitioner to transport the petitioner to said superior court without the issuance of any writ or other legal process, provided, however, that any district or superior court is authorized to issue a writ of habeas corpus for the appearance forthwith of the petitioner before the superior court.
The superior court shall in accordance with the standards set forth in the first paragraph of this section, hear the petition for review as speedily as practicable and except for unusual circumstances, on the same day the petition is filed; provided, however, that the court may continue the hearing to the next business day if the required records and other necessary information are not available. The justice of the superior court may, after a hearing on the petition for review, order that the petitioner be released on bail on his personal recognizance without surety, or, in his discretion, to reasonably assure the effective administration of justice, make any other order of bail or recognizance or remand the petitioner in accordance with the terms of the process by which he was ordered committed by the district court.
If a defendant has posted bail in the district court and has subsequently been arraigned in the superior court for the same offense, the superior court clerk shall notify the district court clerk holding the defendant’s bail of such arraignment. Upon such notification, the amount of any bail bond posted by a defendant in the district court shall be carried over to a bail bond required by the superior court. The superior court justices’ discretion in setting the amount of bail shall not be affected by the provisions of this paragraph.
Except where the defendant has defaulted on his recognizance or has been surrendered by a probation officer, an order of bail or recognizance shall not be revoked, revised or amended by the district court, because the defendant has been bound over to the superior court; provided, however, that if any court, in its discretion, finds that changed circumstances or other factors not previously known or considered, make the order of bail or recognizance ineffective to reasonably assure the appearance of said defendant before the court, the court may make a further order of bail, either by increasing the amount of the recognizance or requiring sufficient surety or both, which order will not revoke the order of bail or recognizance previously in force and effect. The court may also review such changed circumstances or other factors not previously known or considered in accordance with the third paragraph of this section.
The chief justice of the district court department and the chief justice of the Boston municipal court department shall prescribe forms for use in their respective courts, for the purpose of notifying a defendant of his right to file a petition for review in the superior court, forms for a petition for review and forms for the implementation of any other procedural requirements. The clerk of courts shall forthwith notify the district court of all orders or judgments of the superior court on petitions for review. Costs or expenses of services and transportation under this section shall be ordered paid in the amount determined by the superior court out of the state treasury.
For an offense enumerated in section fifty-eight A, and upon the motion of an attorney for the commonwealth for an order of pretrial detention or imposition of conditions of release based on dangerousness, a justice of the district or superior court shall hold a hearing pursuant to the provisions of subsection (4) of said section fifty-eight A and shall admit such person to bail on his personal recognizance without surety or subject to conditions of release unless said justice, determines, in the exercise of his discretion, that such release will endanger the safety of any other person or the community.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 58A. Conditions for release of persons accused of certain offenses involving physical force or abuse; hearing; order; review Section 58A. (1) The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to section eighteen, thirty-four B or thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, four or five of chapter two hundred and nine A, or section fifteen or twenty of chapter two hundred and nine C, or arrested and charged with a misdemeanor or felony involving abuse as defined in section one of said chapter two hundred and nine A or while an order of protection issued under said chapter two hundred and nine A was in effect against said person, an offense for which a mandatory minimum term of three years or more is prescribed in chapter ninety-four C, arrested and charged with a violation of section thirteen B of chapter two hundred and sixty-eight or a third or subsequent conviction for a violation of section twenty-four of chapter ninety.
(2) Upon the appearance before a superior court or district court judge of an individual charged with an offense listed in subsection (1) and upon the motion of the commonwealth, the judicial officer shall hold a hearing pursuant to subsection (4) issue an order that, pending trial, the individual shall either be released on personal recognizance without surety; released on conditions of release as set forth herein; or detained under subsection (3).
If the judicial officer determines that personal recognizance will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person—(A) subject to the condition that the person not commit a federal, state or local crime during the period of release; and(B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community that the person—(i) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community;(ii) maintain employment, or, if unemployed, actively seek employment;(iii) maintain or commence an educational program;(iv) abide by specified restrictions on personal associations, place of abode or travel;(v) avoid all contact with an alleged victim of the crime and with any potential witness or witnesses who may testify concerning the offense;(vi) report on a regular basis to a designated law enforcement agency, pretrial service agency, or other agency;(vii) comply with a specified curfew;(viii) refrain from possessing a firearm, destructive device, or other dangerous weapon;(ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, without a prescription by a licensed medical practitioner;(x) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency and remain in a specified institution if required for that purpose;(xi) execute an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial officer may require;(xii) execute a bail bond with solvent sureties; who will execute an agreement to forfeit in such amount as is reasonably necessary to assure appearance of the person as required and shall provide the court with information regarding the value of the assets and liabilities of the surety if other than an approved surety and the nature and extent of encumbrances against the surety’s property; such surety shall have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond;(xiii) return to custody for specified hours following release for employment, schooling, or other limited purposes; and(xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.
The judicial officer may not impose a financial condition that results in the pretrial detention of the person.
The judicial officer may at any time amend the order to impose additional or different conditions of release.
(3) If, after a hearing pursuant to the provisions of subsection (4), the district or superior court justice finds by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community, said justice shall order the detention of the person prior to trial. A person detained under this subsection shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2). A justice may not impose a financial condition under this section that results in the pretrial detention of the person. Nothing in this section shall be interpreted as limiting the imposition of a financial condition upon the person to reasonably assure his appearance before the courts.
(4) When a person is held under arrest for an offense listed in subsection (1) and upon a motion by the commonwealth, the judge shall hold a hearing to determine whether conditions of release will reasonably assure the safety of any other person or the community.
The hearing shall be held immediately upon the person’s first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the commonwealth may not exceed three business days. During a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person. At the hearing, such person shall have the right to be represented by counsel, and, if financially unable to retain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information. The rules concerning admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. The facts the judge uses to support findings pursuant to subsection (3), that no conditions will reasonably assure the safety of any other person or the community, shall be supported by clear and convincing evidence. In a detention order issued pursuant to the provisions of said subsection (3) the judge shall (a) include written findings of fact and a written statement of the reasons for the detention; (b) direct that the person be committed to custody or confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentence or being held in custody pending appeal; and (c) direct that the person be afforded reasonable opportunity for private consultation with his counsel. The person may be detained pending completion of the hearing. The hearing may be reopened before or after a determination by the justice, at any time before trial if the justice finds that information exists that was not known at the time of the hearing and that has a material bearing on the issue and whether there are conditions of release that will reasonably assure the safety of any other person and the community.
(5) In his determination as to whether there are conditions of release that will reasonably assure the safety of any other individual or the community, said justice, shall, on the basis of any information which he can reasonably obtain, take into account the nature and seriousness of the danger posed to any person or the community that would result by the person’s release, the nature and circumstances of the offense charged, the potential penalty the person faces, the person’s family ties, employment record and history of mental illness, his reputation, the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror, his record of convictions, if any, any illegal drug distribution or present drug dependency, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve abuse as defined in section one of chapter two hundred and nine A, or violation of a temporary or permanent order issued pursuant to section eighteen or thirty-four B of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four or five of chapter two hundred and nine A, or sections fifteen or twenty of chapter two hundred and nine C, whether the person has any history of orders issued against him pursuant to the aforesaid sections, whether he is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction.
(6) Nothing in this section shall be construed as modifying or limiting the presumption of innocence.
(7) A person aggrieved by the denial of a district court justice to admit him to bail on his personal recognizance with or without surety may petition the superior court for a review of the order of the recognizance and the justice of the district court shall thereupon immediately notify such person of his right to file a petition for review in the superior court. When a petition for review is filed in the district court or with the detaining authority subsequent to petitioner’s district court appearance, the clerk of the district court or the detaining authority, as the case may be, shall immediately notify by telephone, the clerk and probation officer of the district court, the district attorney for the district in which the district court is located, the prosecuting officer, the petitioner’s counsel, if any, and the clerk of courts of the county to which the petition is to be transmitted. The clerk of the district court, upon the filing of a petition for review, either in the district court or with the detaining authority, shall forthwith transmit the petition for review, a copy of the complaint and the record of the court, including the appearance of the attorney, if any is entered, and a summary of the court’s reasons for denying the release of the defendant on his personal recognizance with or without surety to the superior court for the county in which the district court is located, if a justice thereof is then sitting, or to the superior court of the nearest county in which a justice is then sitting; the probation officer of the district court shall transmit forthwith to the probation officer of the superior court, copies of all records of the probation office of said district court pertaining to the petitioner, including the petitioner’s record of prior convictions, if any, as currently verified by inquiry of the commissioner of probation. The district court or the detaining authority, as the case may be, shall cause any petitioner in its custody to be brought before the said superior court within two business days of the petition having been filed. The district court is authorized to order any officer authorized to execute criminal process to transfer the petitioner and any papers herein above described from the district court or the detaining authority to the superior court, and to coordinate the transfer of the petitioner and the papers by such officer. The petition for review shall constitute authority in the person or officer having custody of the petitioner to transport the petitioner to said superior court without the issuance of any writ or other legal process; provided, however, that any district or superior court is authorized to issue a writ of habeas corpus for the appearance forthwith of the petitioner before the superior court.
The superior court shall in accordance with the standards set forth in section fifty-eight A, hear the petition for review under section fifty-eight A as speedily as practicable and in any event within five business days of the filing of the petition. The justice of the superior court hearing the review may consider the record below which the commonwealth and the person may supplement. The justice of the superior court may, after a hearing on the petition for review, order that the petitioner be released on bail on his personal recognizance without surety, or, in his discretion, to reasonably assure the effective administration of justice, make any other order of bail or recognizance or remand the petitioner in accordance with the terms of the process by which he was ordered committed by the district court.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 58B. Revocation of release and detention order following violation of release conditions Section 58B. A person who has been released after a hearing pursuant to section fifty-eight A and who has violated a condition of his release, shall be subject to a revocation of release and an order of detention. The judicial officer shall enter an order of revocation and detention if after a hearing the judicial officer finds (1) that there is probable cause to believe that the person has committed a federal or state crime while on release, or clear and convincing evidence that the person has violated any other condition of release; and (2) the judicial officer finds that there are no conditions of release that will reasonably assure the person will not pose a danger to the safety of any other person or the community; or the person is unlikely to abide by any condition or combination of conditions of release.
If there is probable cause to believe that, while on release, the person committed a federal felony or an offense described in clause (1), a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community. If the judicial officer finds that there are conditions of release that will assure that the person will not pose a danger to the safety of any other person or the community, and that the person will abide by such conditions, the judicial officer shall treat the person in accordance with the provisions of this section and may amend the conditions of release accordingly. Upon the person’s first appearance before the judicial officer in the court which will conduct proceedings for revocation of an order of release under this section, the hearing concerning revocation shall be held immediately unless that person or the attorney for the commonwealth seeks a continuance. During a continuance the person shall be detained without bail unless the judicial officer finds that there are conditions of release that will reasonably assure that the person will not pose a danger to the safety of any other person or the community and that the person will abide by conditions of release. If the person is detained without bail, except for good cause, a continuance on motion of the person shall not exceed seven days, a continuance on motion of the attorney for the commonwealth or probation shall not exceed three business days. A person detained under this subsection, shall be brought to trial as soon as reasonably possible, but in the absence of good cause, a person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2).
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 59. Admission to bail by master in chancery Section 59. After a person is committed to jail to await the action of the grand jury, he shall not be admitted to bail by a master in chancery who does not reside or have a usual place of business within the county where the jail is situated, except upon proof that written notice of the proposed application has been duly served upon the district attorney, or one of the assistant district attorneys, for the district, at least twenty-four hours before a hearing on the application, specifying the name of the person, the crime with which he is charged, the time and place of hearing, and the name, occupation and residence of the proposed sureties, or upon proof that the district attorney, or one of the assistant district attorneys, for the district has waived notice of the hearing on such proposed application.
PROBATION SEARCH WARRANTS Chapter 276: Section 6. Postponement of trial; further notice Section 6. If, at the time appointed for the trial, such notice has not been duly served, or if it appears necessary that any of the articles so seized should be kept longer for the purpose of being produced or used as evidence on any trial, or if other sufficient cause appears, the trial may be postponed to another day and place and further notice issued.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 60. Bail in Suffolk county; proceedings Section 60. After a conviction or a plea of guilty or of nolo contendere in the superior court in Suffolk county, the prisoner shall not be admitted to bail except in open court; but when said court is not in session, bail may be taken by any judge of a court of record or by any commissioner appointed under section fifty-seven, upon proof that written notice of the proposed application has been duly served upon the district attorney, or one of the assistant district attorneys for the Suffolk district, at least twenty-four hours before the hearing of such application, specifying the name of the prisoner, the crime of which he has been convicted, the time and place of hearing, and the name, occupation and residence of the proposed sureties. No person who has been once offered and rejected as surety shall afterward be accepted as surety for the same person in the same case.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 61. Bail taken out of court; certificate or recognizance and deposit by surety; presence of persons; monthly statements by person taking bail Section 61. If bail is taken out of court, the person authorized to admit to bail in criminal cases shall cause a certificate to be signed and sworn to by each surety, which shall contain his name, his residence, including the name of the street and number, if any, of the dwelling house thereon, his occupation and place of business, a statement of the nature, location, purchase price, assessed value and fair market value of his property, and of the encumbrances, if any, thereon, the amount of his indebtedness, the amount and number of other bonds or recognizances on which he is or may be liable and all other matters pertinent to the amount and value of such property, each and all of which statements shall be deemed to be material statements in prosecutions for perjury, and shall return such certificate or certificates and a proper recognizance to the proper court. A surety may, instead of making such certificate, give his personal recognizance as surety and deposit money, bonds or a properly assigned bank book of the kind and in the amount and under the conditions set forth in section fifty-seven for making deposit of like nature. A person authorized to take bail shall take such bail in the presence of the person to be bailed and the surety or sureties, except as otherwise provided in section one hundred and five of chapter one hundred and seventy-five.
On the second Monday of each calendar month, every person taking bail out of court shall transmit to the chief justice of the superior court a written statement, setting forth each separate occasion, as defined in section sixty-one B, on which each bail or surety was accepted as aforesaid during the preceding calendar month, the name and address of each bail or surety, the date of such acceptance, the name of the defendant or defendants, the offense or offenses charged, and the court before which the defendant was required to appear.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 61A. Disposition or encumbrance of real estate of bail or surety; violation of section Section 61A. Whenever a person becomes bail or surety in a criminal case and has offered real estate as his qualification for his acceptance as such bail or surety, and subsequently and while the case in which he has qualified as bail or surety is pending, desires to dispose of or encumber such real estate, he shall in writing notify the court in which the case is then pending of his desire, and shall, unless expressly authorized by the court to continue as such bail or surety, terminate his liability as such bail or surety before he disposes of or encumbers such real estate. Any person violating any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment in the house of correction for not more than one year, or both. Nothing in this section shall in any wise affect the title to such real estate.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 61B. Bond of professional bondsman; arrest bond certificates; conditions of acceptance; regulation Section 61B. No person proposing to become bail or surety in a criminal case for hire or reward, either received or to be received, shall be accepted as such unless he shall have been approved and registered as a professional bondsman by the superior court or a justice thereof. No person proposing to become bail or surety in a criminal case in any calendar year after having become bail or surety in criminal cases on five separate occasions in said year shall be accepted thereafter during said year as bail or surety unless he shall have been approved and registered as a professional bondsman as aforesaid. A person who has been accepted as bail or surety, contrary to the provisions of this section, shall nevertheless be liable on his obligation as such bail or surety. Such approval and registration may be revoked at any time by such court or a justice thereof, and shall be revoked in case such a bondsman fails for thirty days after demand to satisfy in full a judgment recovered under section seventy-four or a new judgment entered on review under section seventy-six. The district attorney or prosecuting officer obtaining any such judgment which is not satisfied in full as aforesaid shall, forthwith upon the expiration of such period of thirty days, notify in writing the chief justice of such court. All professional bondsmen shall be governed by rules which shall be established from time to time by the superior court. Any unregistered person receiving hire or reward for his services as bail or surety in any criminal case, and any unregistered person becoming bail or surety in any criminal case in any calendar year after having become bail or surety in criminal cases on five separate occasions in said year, and any professional bondsman violating any provision of the rules established hereunder for such bondsmen, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both. The provisions of this section shall not apply to probation officers.
A guaranteed arrest bond certificate presented by the person whose signature appears thereon shall be accepted in lieu of cash or a bail bond in an amount not to exceed five hundred dollars to guarantee the appearance of such person in any court of the commonwealth, at the time required by such court, when such person is arrested for violation of any law or of any ordinance or by-law of any municipality therein relating to the operation of a motor vehicle. A guaranteed arrest bond certificate so presented in lieu of a bail bond is subject to the same forfeiture and enforcement provisions as a bail bond or cash bail. Such guaranteed arrest bond certificate may only be used where the alleged violation is committed prior to the expiration date shown thereon. A guaranteed arrest bond certificate may not be accepted when a person is arrested for the offense of driving under the influence of intoxicating liquor or of drugs or narcotics. As used in this section, “guaranteed arrest bond certificate” shall mean a printed card or other certificate issued by a licensed automobile association or travel club to any of its members, which is signed by the member and contains a printed statement that such automobile association or travel club and a surety company licensed to do business shall, in the event of the failure of such person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon such person in an amount not to exceed five hundred dollars.
Whenever a domestic or foreign company licensed to do a surety business in the commonwealth becomes surety in an amount not to exceed five hundred dollars with respect to any guaranteed arrest bond certificates issued in such year by an automobile association or travel club by filing with the office of bail administration an undertaking to become surety, such undertaking shall state: (1) The name and address of the automobile or travel club or association with respect to guaranteed arrest bond certificates of which the surety company undertakes to be surety; (2) The unqualified obligation of the surety company to pay the fine or forfeiture in an amount not to exceed five hundred dollars of any person who, after posting a guaranteed arrest bond certificate with respect to which the surety company has undertaken to be surety, fails to make the appearance for which the guaranteed arrest bond certificate was posted. Such undertaking shall be filed with the office of bail administration ten days prior to its effective date. If such undertaking is terminated, the office of bail administration shall be notified as promptly as possible but not later than the effective date of such termination.
Any such licensed automobile association, travel club or association and any licensed surety company, and its attorneys-in-fact, guaranteeing arrest bond certificates for members of such automobile association, travel club, or association with respect to motor vehicle violations hereunder, pursuant to the provisions of this section, shall not be required to obtain any additional license and compliance herewith shall be deemed to be in lieu of any such additional licensing.
A person shall be deemed to have become bail or surety on a separate occasion within the meaning of this section if he becomes such: (1) for a person in respect to a single offense; or (2) for a person in respect to two or more offenses wherefor he at one and the same time offers bail or surety, or in respect to two or more offenses committed at the same time or arising out of the same transaction or course of conduct wherefor he at different times offers bail or surety; or (3) for two or more persons at the same time offering bail or surety in respect to offenses committed jointly or in common course of conduct. Becoming bail or surety for the same person or persons in subsequent proceedings in connection with prosecution for the same offense or offenses shall not be deemed an additional occasion or occasions.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 62. Notice to district attorney of application to accept bail in Suffolk county Section 62. If application is made to a person authorized to take bail in criminal cases in Suffolk county to accept bail out of court in a case in which no amount has been fixed, he shall, if the crime charged is not within the jurisdiction of the municipal court of the city of Boston, before fixing bail, cause notice of such application to be given to the district attorney or one of the assistant district attorneys for the Suffolk district, if any of said attorneys is at the time within said district.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 63. Compensation for taking bail Section 63. No justice of any court, except a special justice of a district court, shall receive any fee or compensation for taking and approving bail in criminal cases, and no person authorized to admit to bail in criminal cases shall receive from any source in connection with the admitting to bail anything of value in excess of the statutory fees therefor. No person shall act as attorney in any case in which he has admitted a prisoner or witness to bail.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 64. Admission to bail on Sunday Section 64. Persons held in custody or committed upon a criminal charge, if entitled to be released upon bail, may, in the discretion of the magistrate, be admitted to bail on Sunday.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 65. Condition of recognizance Section 65. The condition of a recognizance of a person, either with or without surety, binding him to appear before a court or justice to answer to a charge against him or to prosecute an appeal shall be so framed as to bind him personally to appear at the time so expressed, and at any subsequent time to which the case may be continued, unless previously surrendered or discharged, and so from time to time, until the final decree, sentence or order of the court or justice thereon, and to abide such final sentence, order or decree, and not depart without leave. The condition of a recognizance of a person held to answer to a charge before a district court shall be further so framed as to bind him to appear before the district court to answer to the charge or to answer to any indictment which may be returned against him. The superior court shall by rule provide for the forms of recognizances and bail bonds. A recognizance of a person held to answer to a complaint before a district court which is required by law to sit in more than one municipality may, with his consent or at his request, be conditioned for his appearance at the next sitting of the court at any one of said municipalities.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 66. Return of recognizance and examination taken by magistrate; order compelling; contempt Section 66. A recognizance and examination taken by a magistrate under this chapter shall be certified and returned by him to the district attorney or to the clerk of the court before which the person charged is bound to appear, on or before the first day of the sitting thereof; and if he refuses or neglects to return the same, he may be compelled to do so forthwith by order of court, and, in case of disobedience, may be proceeded against as for contempt.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 67. Repealed, 1994, 247, Sec. 5 PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 68. Surrender of principal; notice; exoneration of bail; return of deposits; subsequent bail Section 68. Bail in criminal cases may be exonerated at any time before default upon their recognizance by surrendering their principal into court or to the jailer in the county where the principal is held to appear, or by such voluntary surrender by the principal himself, and in either event, in all cases where bank books, money or bonds are deposited by the surety, the court shall thereupon order the bank books, money or bonds so deposited to be returned to the surety or his order, and to be reassigned to the person entitled thereto. They shall deliver to the jailer their principal, with a certified copy of the recognizance, and he shall be received and detained by the jailer, but may again be bailed in the same manner as if committed for not finding sureties to recognize for him, provided that the surety making the surrender shall not be accepted as bail if the person surrendered shall again be bailed. The jailer shall forthwith notify the clerk or justice of the court where the proceeding is pending of such surrender.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 69. Surrender of principal after default; remission of penalty Section 69. Bail may surrender their principal at any time after default made upon the recognizance, or the principal may surrender himself, in the manner provided in the preceding section; and the court where the default is recorded may, upon application, remit the whole or any part of the penalty, if satisfied that the default of the principal was not with the connivance or consent of the bail.
PROBATION SEARCH WARRANTS Chapter 276: Section 7. Sale or destruction of property seized; disposition of proceeds Section 7. If upon trial the property is adjudged forfeited, it shall forthwith be disposed of as provided by law. So much thereof as is ordered to be sold by the court or justice shall be sold by the sheriff and the proceeds paid to the county. All moneys seized shall be paid over forthwith to the state treasurer. The court or justice may order any article not found to have been unlawfully used, kept or concealed or intended for unlawful use, or any article unlawfully used without the knowledge of its owner, lessor or mortgagee to be delivered to the party legally entitled to its possession.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 70. Inability to surrender principal; exoneration of bail Section 70. If, by the act of God, of the government of the United States, of any state or by sentence of law, bail are unable without their fault to surrender their principal, they shall, upon motion before final judgment on scire facias, be exonerated and discharged by the court, with or without costs as the court deems equitable.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 71. Default on recognizance Section 71. If a person under recognizance to appear and answer or to prosecute an appeal in a criminal case fails to appear according to his recognizance, and if a person under recognizance to testify in a criminal prosecution fails to perform the condition of his recognizance, his default shall be recorded, his obligation and that of his sureties forfeited, and process issued against them or such of them as the prosecuting officer directs; but in such suit no costs shall be taxed for travel. No such process shall issue in cases where bank books, bonds or money have been deposited at the time of such recognizance.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 72. Surety paying amount for which bound; costs Section 72. A surety in such recognizance may, by leave of the court, after default, and either before or after process has been issued against him, pay to the county treasurer or clerk of the court the amount for which he was bound as surety, with such costs as the court shall direct, and shall be thereupon forever discharged.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 73. Award of portion of penalty to person entitled to forfeiture Section 73. If, in a suit on a recognizance to prosecute an appeal, the penalty is adjudged forfeited, or if by leave of court such penalty has been paid without suit or before judgment as provided in the preceding section, and any forfeiture accrues by law to a person by reason of the crime of which the appellant was convicted, the court may award to such person the portion of the amount paid to which he is entitled.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 74. Judgment for whole or part of penalty Section 74. If the penalty of a recognizance of a party or witness in a criminal prosecution is adjudged forfeited, the court may render judgment, upon such terms as it may order, against the principal or surety, or both, for the whole of the penalty with interest, or, in its discretion, for a part thereof, upon the filing in the case of a certificate of the district attorney or prosecuting officer stating that the interests of justice would be furthered thereby and setting forth specifically the reasons therefor; and no person shall, on behalf of the commonwealth, accept in satisfaction of any such judgment or any new judgment entered on review under section seventy-six any sum less than the full amount thereof.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 75. Neglect, omissions or defects as defeating action Section 75. Such action shall not be barred or defeated, nor shall judgment be arrested, by reason of neglect or omission to note or record the default of any principal or surety at the time when it happens, nor by reason of a defect in the form of the recognizance, if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized to require and take such recognizance.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 76. Review and rehearing of case after judgment on recognizance Section 76. A court which has rendered judgment on a recognizance may, upon petition of any person interested, stating the ground relied upon and filed in said court, grant a review and a rehearing of the case, upon the surrender or recaption of the prisoner who was released, or for any sufficient cause which has occurred or been ascertained by the person interested after the rendition of such judgment, or at such time as not to have afforded opportunity for presenting the same in evidence.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 77. Service of notice and copy of petition; return day Section 77. Notice of the petition and a copy thereof shall be given to or served upon the district attorney for the county where the petition is pending fourteen days at least before the return day expressed therein, and such notice shall be returnable on the first Monday of the first or second month after the filing of the petition.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 78. Proceedings if former judgment diminished, etc.
; costs Section 78. If the court finds that a part of the judgment has been actually paid to or for the commonwealth upon the recognizance or judgment and orders the judgment to be reversed or entered for a less amount than has been so actually paid, it may order the amount of the difference between the payment and the new judgment to be repaid to the person who made the payment or to his legal representatives. The state treasurer shall, upon presentation of a copy of the order certified by the clerk of the court, make said repayment. If, upon such petition, the review is not granted or the original judgment is not altered, the court may award reasonable costs against the petitioner.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 79. Personal recognizance and deposit instead of sureties for release from custody Section 79. A person held in custody or committed upon a criminal charge, if entitled to be released on bail, or a person held in custody or committed as a witness to a crime, may, instead of giving surety or sureties, at any time give his personal recognizance to appear before the court and deposit the amount of the bail which he is ordered to furnish, or bonds or a properly assigned bank book, of the kind and in the amount and under the conditions set forth in section fifty-seven for making deposit of like nature, with the court, clerk of the court or magistrate authorized to take such recognizance, who shall give him a certificate thereof, and upon delivering said certificate to the officer in whose custody he is, shall be released. The court or magistrate shall forthwith, upon receipt of such amount, deposit it with the clerk of the court.
PROBATION SEARCH WARRANTS Chapter 276: Section 8. Appeal; recognizance; jury trial; conformity to criminal cases; disposition of articles Section 8. A person aggrieved by a decree of forfeiture of a district court may appeal therefrom to the superior court; but before his appeal is allowed, he shall recognize to the commonwealth in the sum of two hundred dollars, with sufficient surety or sureties, to prosecute his appeal and to pay all such expenses as may thereafter arise, if final judgment is rendered against the articles adjudged forfeited, and to abide the judgment of the superior court thereon; and upon such appeal, any question of fact shall be tried by a jury. All proceedings in the superior court, including the right of exception, shall conform so far as may be to proceedings in criminal cases; and if, upon final judgment, the articles are adjudged forfeited, they shall be disposed of under the direction of the superior court as they might have been disposed of had no appeal been taken.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 80. Forfeiture of deposit on default; sale of bonds; collection on bank books; payments to state treasurer Section 80. At any time after default of the defendant, the court may order forfeited the money, bonds or bank books deposited at the time of the recognizance and the court or clerk of the court with whom the deposit was made shall thereupon pay to the state treasurer any money so deposited. The clerk of the court shall immediately proceed to sell any bonds so deposited either at public or private sale, and shall forthwith pay the proceeds thereof, after deducting all expenses connected with such sale, to the state treasurer and if bank books are so deposited, the said clerk shall collect the amount of bail from the depository, and pay the same, less the expense of collection, to the state treasurer.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 81. Defendant surrendering self; return of deposit Section 81. The defendant may surrender himself at any time before a default, in the same manner as sureties in criminal cases may surrender their principal, and the court shall thereupon order the bank books to be reassigned and the money or bonds so deposited to be returned to the person in whose name the deposit is made or to his order. At any time after default, on the surrender or recaption of the defendant, the court may order the whole or any part of the money so deposited or of the bonds, or of the amount of the net proceeds of the sale of said bonds, or the bank books, or the whole or any part of the amount collected from the depository thereunder, to be returned to the person in whose name the deposit is made or to his order. If the amount realized by sale or collection pursuant to the preceding section exceeds the amount of the recognizance, the court shall, on an application made at any time, order such excess to be returned to the party found by the court to be entitled thereto. The foregoing provisions shall apply to cases in which forfeiture has been ordered.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 82. Magistrates authorized to admit prisoners to bail Section 82. The term “magistrate”, in any section of the statutes which provides for admitting persons to bail in criminal cases, shall be construed to include a bail commissioner or special magistrate, so far as to give him authority to admit prisoners to bail.
PROBATION ARREST, EXAMINATION, COMMITMENT AND BAIL Chapter 276: Section 82A. Failure to appear in court after release on bail or recognizance; penalty Section 82A. A person who is released by court order or other lawful authority on bail or recognizance on condition that he will appear personally at a specified time and place and who fails without sufficient excuse to so appear shall be punished by a fine of not more than ten thousand dollars or by imprisonment in a house of correction for not more than one year, or both, in the case of a misdemeanor, and by a fine of not more than fifty thousand dollars and imprisonment in a state prison for not more than five years, or a house of correction for not more than two and one-half years, or by fine and imprisonment, in the case of a felony.
A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment for the offense for which the prisoner failed to appear.
PROBATION PROBATION OFFICERS Chapter 276: Section 83. Appointment of probation officers; suspension; compensation Section 83. Subject to appropriation, the commissioner of probation may appoint, dismiss and assign such probation officers to the several sessions of the trial court as he deems necessary. In any court having 2 or more probation officers, said commissioner may designate 1 probation officer to serve as chief probation officer and may designate other probation officers to serve as assistant chief probation officers, as he deems necessary for the effective administration of justice; provided, however, that said commissioner may suspend or discipline any such probation officer. The compensation of probation officers in the trial court shall be paid by the commonwealth according to schedules established in section 99B or in a provision of an applicable collective bargaining agreement.
PROBATION PROBATION OFFICERS Chapter 276: Section 83A. Repealed, 1992, 379, Sec. 189 PROBATION PROBATION OFFICERS Chapter 276: Section 83B to 83F. Repealed, 1949, 783, Sec. 2 PROBATION PROBATION OFFICERS Chapter 276: Section 84. Repealed, 1977, 97 PROBATION PROBATION OFFICERS Chapter 276: Section 85. Powers and duties Section 85. Each person who receives an appointment as a probation officer shall, within six months of the date of his appointment, attend a basic orientation training course conducted by the commissioner of probation pursuant to section ninety-nine. All probation officers shall attend at least every three years an in-service training course pursuant to this section. In addition to the other duties imposed upon him, each probation officer shall, as the court may direct, inquire into the nature of every criminal case brought before the court under the appointment of which he acts, and inform the court, so far as is possible, whether the defendant has previously been convicted of crime and in the case of a criminal prosecution before said court charging a person with an offence punishable by imprisonment for more than one year the probation officer shall in any event present to the court such information as the commissioner of probation has in his possession relative to prior criminal prosecutions, if any, of such person and to the disposition of each such prosecution, and all other available information relative thereto, before such person is admitted to bail in court and also before disposition of the case against him by sentence, or placing on file or probation. Such record of the probation officer presented to the court shall not contain as part thereof any information of prior criminal prosecutions, if any, of the defendant wherein the defendant was found not guilty by the court or jury in said prior criminal prosecution. Prior to the aforesaid disposition such record of the probation officer shall be made available to the defendant and his counsel for inspection. When it comes to the knowledge of a probation officer that the defendant in a criminal case before his court charged with an offence punishable by imprisonment is then on probation in another court or is then at liberty on parole or on a permit to be at liberty, such probation officer shall forthwith certify the fact of the presence of the defendant before his court to the probation officer of such other court or the parole authorities granting or issuing such parole or permit to be at liberty, as the case may be. He may recommend to the justice of his own court that any person convicted be placed on probation. He shall perform such other duties as the court requires. He shall keep full records of all cases investigated by him or placed in his care by the court, and of all duties performed by him. Every person released upon probation shall be given by the probation officer a written statement of the terms and conditions of the release.
PROBATION PROBATION OFFICERS Chapter 276: Section 85A. Support and maintenance enforcement Section 85A. In addition to other duties, a probation officer of the probate court may, when ordered to do so by the court, examine all records and files in divorce, legal separation, annulment, custody and paternity cases in which orders or decrees have been entered to ascertain whether the persons to whom payments of money should have been made regularly received the various and definite amounts provided for in the orders or decrees of the court and, where there are dependent minor children, that the same are applied for the support, maintenance, education and betterment of said dependent minor children, and that said dependent minor children are properly cared for by their custodian. Said officers shall bring into court when necessary, by citation or otherwise, all persons who are delinquent in making payments ordered or decreed by the court and shall ascertain in the case of dependent minor children whether they are receiving proper maintenance and education and whether they are liable to become public charges. Consistent with these and other duties, a probation officer shall assist the IV-D agency, as set forth in chapter one hundred and nineteen A to enforce child support orders.
PROBATION PROBATION OFFICERS Chapter 276: Section 85B. Delinquent payments; collection; contempt proceedings Section 85B. Said probation officer shall have full power, by citation or other order duly issued by the probate court, to compel the attendance of witnesses to take testimony and do each and every thing necessary, including initiating contempt proceedings, to collect any and all delinquent payments due to any person entitled under order or decree of said court to receive payments, to make recommendations to the probate court, where there are dependent minor children, for the betterment of the conditions of said dependent minor children and to ascertain when requested to do so by the court the moral and general conditions surrounding said dependent minor children and shall report the result of such findings to said court.
PROBATION PROBATION OFFICERS Chapter 276: Section 86. Appointment of deputy probation officers by Boston juvenile court; creditable service Section 86. The justice of the Boston juvenile court subject to the approval of the commissioner of probation may appoint as many deputy probation officers, without salary, as he may deem desirable, who shall assist probation officers in such way as the court may direct in making investigations of cases of children against whom complaints have been made, and in the care of children placed on probation.
Subject to the provisions and limitations of sections one to twenty-eight, inclusive, of chapter thirty-two, any member in service of a retirement system established under said sections, and any person who has been retired under any such system, shall be credited with all service rendered by him as a deputy probation officer under this section; provided that before any retirement allowance becomes effective for him or, in the case of any person already retired, before January first, nineteen hundred and sixty-seven, he pays into the annuity savings fund of such system, with regular interest as defined in said sections, in one sum, or in instalments, upon such terms and conditions as the board managing such system may prescribe, an amount equal to that which would have been withheld as regular deductions from the minimum annual salary payable to a probation officer of said court during the period that such member in service or person so retired served as such deputy probation officer.
PROBATION PROBATION OFFICERS Chapter 276: Section 87. Placing certain persons in care of probation officer Section 87. The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty; provided, that, in the case of any child under the age of seventeen placed upon probation by the superior court, he may be placed in the care of a probation officer of any district court or of any juvenile court, within the judicial district of which such child resides; and provided further, that no person convicted under section twenty-two A or twenty-four B of chapter two hundred and sixty-five or section thirty-five A of chapter two hundred and seventy-two shall, if it appears that he has previously been convicted under said sections and was eighteen years of age or older at the time of committing the offense for which he was so convicted, be released on parole or probation prior to the completion of five years of his sentence.
PROBATION PROBATION OFFICERS Chapter 276: Section 87A. Conditions of probation; probation fees Section 87A. The conditions of probation imposed by a court upon a person pursuant to section eighty-seven of this chapter, section fifty-eight of chapter one hundred and nineteen or section one or section one A of chapter two hundred and seventy-nine, may include, but shall not be limited to, participation by said person in specified rehabilitative programs or performance by said person of specified community service work for a stated period of time.
The court shall assess upon every person placed on supervised probation, including all persons placed on probation for offenses under section 24 of chapter 90, a monthly probation supervision fee, hereinafter referred to as “probation fee”, in the amount of $60 per month. Said person shall pay said probation fee once each month during such time as said person remains on supervised probation. The court shall assess upon every person placed on administrative supervised probation a monthly administrative probation supervision fee, hereinafter referred to as “administrative probation fee”, in the amount of $20 per month. Said person shall pay said administrative probation fee once each month during such time as said person remains on administrative supervised probation. Notwithstanding the foregoing, said fees shall not be assessed upon any person accused or convicted of a violation of section 1 or 15 of chapter 273, where compliance with an order of support for a spouse or minor child is a condition of probation.
The court may not waive payment of either or both of said fees unless it determines after a hearing and upon written finding that such payment would constitute an undue hardship on said person or his family due to limited income, employment status or any other factor. Following the hearing and upon such written finding that either or both of said fees would cause such undue hardship then: (1) in lieu of payment of said probation fee the court shall require said person to perform unpaid community work service at a public or nonprofit agency or facility, as approved and monitored by the probation department, for not less than one day per month and (2) in lieu of payment of said administrative probation fee the court shall require said person to perform unpaid community work service at a public or nonprofit agency or facility, as approved and monitored by the probation department, for not less than four hours per month. Such waiver shall be in effect only during the period of time that said person is unable to pay his monthly probation fee.
The court may waive payment of either or both of said fees in whole or in part if said person is assessed payment of restitution. In such cases, said fees may be waived only to the extent and during the period that restitution is paid in an amount equivalent to said fee.
Said probation fee shall be collected by the several probation offices of the trial court and transmitted to the state treasurer for deposit into the General Fund. The state treasurer shall account for all such fees received and report said fees annually, itemized by court division, to the house and senate committees on ways and means.
The court shall also assess upon every person placed on supervised probation, including all persons placed on probation for offenses under section 24 of chapter 90, a monthly probationers’ victim services surcharge, hereinafter referred to as “victim services surcharge”, in the amount of $5 per month. Said person shall pay said victim services surcharge once each month during such time as said person remains on supervised probation. The court shall assess upon every person placed on administrative supervised probation a monthly administrative probationer’s victim services surcharge, hereinafter referred to as “administrative victim services surcharge” in the amount of $1 per month.
Said person shall pay said administrative victim services surcharge once each month during such time as said person remains on administrative supervised probation. Notwithstanding the foregoing, said fees shall not be assessed upon any person accused or convicted of a violation of section 1 or 15 of chapter 273, where compliance with an order of support for a spouse or minor child is a condition of probation.
The court may not waive payment of either or both of said fees unless it has determined, after a hearing and upon written finding, that such payment would constitute an undue hardship on said person or his family due to limited income, employment status or any other factor. Such waiver shall be in effect only during the period of time that said person is unable to pay his monthly probation fee.
Said probation fee shall be collected by the several probation offices of the trial court and shall be transmitted to the state treasurer for deposit into the General Fund of the commonwealth. The state treasurer shall account for all such fees received and report said fees annually, itemized by court division, to the house and senate committees on ways and means.
PROBATION PROBATION OFFICERS Chapter 276: Section 88. Clerical assistance Section 88. Every court appointing probation officers may employ such clerical assistance as it deems necessary to keep, index and consolidate the records required to be kept by probation officers and for such other work in connection with its probation service as the court may determine. The compensation for such service, together with such other necessary expenses as the court shall incur in connection with such work, shall be paid by the commonwealth upon vouchers approved by said court.
The administrative justices for the district court and juvenile court departments, in consultation with the commissioner of probation, may designate and redesignate such divisions thereof, including in such term the Boston juvenile court, the Worcester juvenile court, the Bristol county juvenile court and the Springfield juvenile court, within each of the counties of the commonwealth as in the opinion of said administrative justices should join in the establishment of a probation district office for the clerical service of the probation officers of the divisions thereof so designated or redesignated and said divisions so designated or redesignated shall thereupon consult with the chief administrative justice of the trial court and the commissioner of probation as to the establishment of such a probation district office, and shall join in the employment of such clerical assistance as is necessary to keep, index and consolidate the records in such form as may be required by the commissioner of probation in connection with the probation service of the said courts. The compensation for such service, together with such other necessary expenses as the courts shall incur in connection with such work, shall be paid by the commonwealth upon vouchers approved by one of the justices of said courts, designated by said administrative justices.
PROBATION PROBATION OFFICERS Chapter 276: Section 89. Temporary probation officers Section 89. The superior court or the justice of a district court, including in such term the Worcester juvenile court, the Boston juvenile court, the Bristol county juvenile court and the Springfield juvenile court, may, in the case of a vacancy in the position of probation officer or in the absence of a probation officer, appoint a temporary probation officer, who shall have the powers and perform the duties of such probation officer and shall receive as compensation for each day’s service an amount equal to the rate by the day of the minimum compensation of a regular probation officer according to the salary schedule established under section eight of chapter two hundred and eleven B. Compensation so paid to a temporary probation officer for service rendered in the absence of a probation officer, in excess of thirty days in any one year, shall be deducted from the compensation of the probation officer in whose place such service is rendered; provided, however, that if a probation officer is absent, due to his illness or physical disability, for a period not exceeding thirty days in any year, in addition to said thirty days, he shall be deemed to be on sick leave and no such deduction shall be made. Such thirty days’ sick leave or any portion thereof not used in any year may be accumulated, but shall, in any event, not exceed ninety days in any consecutive three year period. If the person so appointed holds an office or position, the salary or compensation for which is paid out of the treasury of the commonwealth, or of a county, or of a municipality, he shall not receive the salary of both offices or positions during the period of such temporary service.
The justices of a probate court for any county, except the county of Dukes County and the counties of Nantucket and Franklin, may, in the absence of a probation officer, appoint a temporary probation officer in the same manner and upon the same conditions, with the same powers and duties and the same rate of compensation as is provided in the first paragraph.
The justice of a district court, with the approval of the administrative justice of district courts, may, in the case of the death, removal, resignation or retirement of a probation officer, appoint a temporary probation officer for a single term not to exceed ninety days. Such temporary probation officer shall receive as compensation from the commonwealth an amount equal to that which would have been paid, for a like period of service, to a regular probation officer receiving the minimum compensation according to the salary schedule as established under section eight of chapter two hundred and eleven B. No temporary probation officer appointed under this section shall serve for more than ninety days unless his appointment to such temporary office has been approved by the chief administrative justice of the trial court upon recommendation of the commissioner of probation.
PROBATION PROBATION OFFICERS Chapter 276: Section 89A. Counsellors to juvenile offenders Section 89A. The superior court or the justice of a district court may appoint deputy probation officers who shall serve without compensation as counsellors to children under the age of seventeen who have been placed in the care of probation officers under section eighty-seven in order that such children may receive to a greater degree individual attention and guidance. Deputy probation officers shall perform their services under the direction of probation officers. Deputy probation officers may be reimbursed by the commonwealth upon voucher approved by the court to which they are assigned for necessary expenses incurred by them in the course of their duties.
The chief justice for administration and management, in consultation with the commissioner of probation, may apply for and accept federal grants or assistance for the purpose of defraying the costs of additional clerical assistance, equipment, books, materials and other expenses incident to the services which such deputy probation officers perform.
PROBATION REWARDS Chapter 276: Section 9. Rewards offered by governor; determination of claims Section 9. The governor, if he deems the public good so requires, may offer a suitable reward of not more than ten thousand dollars in any one case to be paid by the commonwealth to any person who, in consequence of such offer, apprehends, brings back and secures a person who is convicted of or charged with a felony, who has escaped from prison in the commonwealth, or to any person who, in consequence of such offer, apprehends and secures a person charged with such crime, or for information that shall lead to the arrest and conviction of any person who has committed a felony, if the person cannot be arrested and secured in the common course of proceedings. If more than one claimant applies for the payment of such reward, the governor shall determine to whom it shall be paid, and if to more than one person, in what proportion to each, and his determination shall be final.
PROBATION PROBATION OFFICERS Chapter 276: Section 90. Powers of probation officers; reports; records; inspection Section 90. A probation officer shall not be an active member of the regular police force, but so far as necessary in the performance of his official duties shall, except as otherwise provided, have all the powers of a police officer, and if appointed by the superior court may, by its direction, act in any part of the commonwealth. He shall report to the court, and his records may at all times be inspected by police officials of the towns of the commonwealth; provided, that his records in cases arising under sections fifty-two to fifty-nine, inclusive, of chapter one hundred and nineteen shall not be open to inspection without the consent of a justice of his court.
PROBATION PROBATION OFFICERS Chapter 276: Section 91. Power of probation officers appointed by Boston juvenile court to serve process Section 91. Probation officers appointed by the Boston juvenile court may serve such process as may be directed to them by the court.
PROBATION PROBATION OFFICERS Chapter 276: Section 92. Restitution or reparation to injured person through probation officer Section 92. If a person is placed on probation upon condition that he make restitution or reparation to the person injured by him in the commission of his offence, and payment is not made at once, the court may order that it shall be made to the probation officer, who shall give receipts for and keep record of all payments made to him, pay the money to the person injured and keep his receipt therefor, and notify the clerk of the court whenever the full amount of the money is received or paid in accordance with such order or with any modification thereof.
PROBATION PROBATION OFFICERS Chapter 276: Section 92A. Restitution in cases involving motor vehicle theft or fraudulent claims Section 92A. A person found guilty of violating the provisions of sections twenty-seven, twenty-eight, one hundred and eleven B and one hundred and thirty-nine of chapter two hundred and sixty-six shall, in all cases, upon conviction, in addition to any other punishment, be ordered to make restitution to any person whom the court deems appropriate for any financial loss sustained by the victim of his crime, his dependents or an insurer as a result of the commission of the crime. The term “financial loss” shall be interpreted to include but shall not be limited to, loss of earnings, out-of-pocket expenses, and replacement costs. Losses due to pain and suffering are not financial loss. Restitution shall be interpreted to include monetary reimbursement, work or service, or a combination thereof, provided to any person, organization, corporation, or governmental entity, the court determines, has suffered said damage or financial loss, or to perform such work or service for any other person, organization, corporation or governmental entity as the court may determine. Restitution shall be imposed in addition to incarceration or fine, but not in lieu thereof. In an extraordinary case such as indigency, the court may determine that the interests of the victim and justice would not be served by ordering restitution. In such a case, the court shall make and enter specific written findings on the record concerning the extraordinary circumstances presented which militated against the imposition of restitution.
The court shall, after conviction, conduct an evidentiary hearing to ascertain the extent of the damages or financial loss suffered as a result of the defendant’s crime. The court may then determine the amount and method of restitution. In so determining, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant. The defendant’s present and future ability to make such restitution shall be considered.
A defendant ordered to make restitution may petition the court for remission from any payment of restitution or from any unpaid portion thereof. If the court finds that the payment of restitution due will impose an undue financial hardship on the defendant or his family, the court may grant remission from any payment of restitution or modify the time and method of payment.
If a defendant who is required to make restitution defaults in any payment of restitution or installment thereof, the court may hold him in contempt unless said defendant has made a good faith effort to make restitution. If the defendant has made a good faith effort to make restitution, the court may, upon motion of the defendant, modify the order requiring restitution by:(a) providing for additional time to make any payment in restitution;(b) reducing the amount of any payment in restitution or installment thereof;(c) granting a remission from any payment of restitution or part thereof.
Restitution shall not be authorized to a party whom the court determines to be aggrieved, without that party’s consent.
PROBATION PROBATION OFFICERS Chapter 276: Section 93. Payment to treasurer of unclaimed money collected by probation officer Section 93. Except as provided by section one of chapter two hundred and seventy-nine, money collected by a probation officer under order of the court by which he is appointed, if unclaimed after one year from the time of its collection, shall, upon further order of the court, be paid to the treasurer provided, that any part of the said money may be paid to persons establishing before the comptroller a lawful claim thereto within five years of its payment to said treasurer, unless sooner paid over by order of the said commissioners.
PROBATION PROBATION OFFICERS Chapter 276: Section 94. Expenses of probation officers Section 94. The reasonable expenses, including supplies and equipment, incurred by probation officers of the superior court and the probate court in the performance of their duties shall be approved and apportioned by the court, and paid by the commonwealth. Such reasonable expenses shall include the traveling expenses necessarily incurred by such a probation officer in connection with attendance at sessions of said court outside of the town in which the principal office of such probation officer is maintained, such expenses to be computed from and to said town. Money to be used for the necessary expenses to be incurred by such a probation officer in going outside the commonwealth for the purpose of bringing back for surrender to the court a person who is on probation shall be advanced by the treasurer of the commonwealth, upon presentation of a certificate signed by the probation officer and approved by said court. After his return such probation officer shall account for such money by filing with said state treasurer itemized vouchers, duly sworn to, approved by the court, setting forth the necessary expenses so incurred and any unexpended balance of such money shall be paid to said state treasurer. Subject to section eighty-one of chapter two hundred and eighteen, probation officers of district courts and of the Boston, Worcester, Bristol county and Springfield juvenile courts shall be reimbursed by the commonwealth for their actual disbursements for necessary expenses incurred while in the performance of their duties, including their reasonable traveling expenses in attending conferences authorized by section ninety-nine, not exceeding four hundred dollars to each in any one year, upon vouchers approved by the court by which they are appointed.
PROBATION PROBATION OFFICERS Chapter 276: Section 95. Temporary support or transportation of probationers Section 95. The superior courts or the Boston, Springfield, Bristol county and Worcester juvenile courts or a district court, except the municipal court of the city of Boston, may authorize a probation officer to expend such amount as the court considers expedient for the temporary support or transportation, or both, of a person placed on probation. A record of any amount so authorized shall be entered on the clerk’s docket of the case.
The chief probation officer of the municipal court of the city of Boston may provide for the temporary support or transportation, or both, of a person placed on probation in said court, or for the relief of the immediate distress of such person, in any manner which he may deem proper, and for these purposes may annually expend a sum not exceeding two thousand dollars for all such cases of relief. At the end of each month said chief probation officer shall submit to the administrative justice of said court a list of the expenses so incurred, with proper vouchers, and upon approval of the administrative justice the amount thereof shall be paid to the chief probation officer by the commonwealth.
PROBATION PROBATION OFFICERS Chapter 276: Section 96. Refusal or neglect of duties by probation officer Section 96. Any probation officer who refuses or neglects to perform any of the duties required of him shall forfeit two hundred dollars to the use of the commonwealth.
PROBATION PROBATION OFFICERS Chapter 276: Section 97. Interference with duties of department of youth services Section 97. Sections eighty-three to ninety-six, inclusive, shall not authorize a probation officer to interfere with any of the duties required of the department of youth services under the law relative to juvenile offenders.
PROBATION PROBATION OFFICERS Chapter 276: Section 98. Commissioner of probation; appointment Section 98. There shall be a commissioner of probation appointed by the chief justice for administration and management, who shall have executive control and supervision of the probation service and who shall devote his full-time during business hours to the duties of his office. Subject to the approval and consent of the chief justice for administration and management, the commissioner may appoint deputies, supervisors and assistants necessary for the performance of his duties. Said commissioner, deputies, supervisors and assistants, shall receive a salary to be fixed by the chief justice for administration and management and subject to appropriation. Subject to the approval and direction of the chief justice for administration and management, the commissioner shall perform such duties and responsibilities as otherwise provided by law or as designated from time to time by the chief justice for administration and management, and shall be responsible for: making recommendations to the first justice and the chief justice for administration and management on the appointment of chief probation officers, assistant chief probation officers and probation officers; the supervision and evaluation of all probation programs within the trial court; the evaluation of the probation service in each court of the commonwealth; the compilation, evaluation, and dissemination of statistical information on crime, delinquency, and appropriate family service matters available in his records; the recruitment, training, and educational development of probation officers; the evaluation of the work performance of probation officers; planning, initiating, and developing volunteer, diversion, and other programs in consultation with probation officers throughout the commonwealth.
PROBATION PROBATION OFFICERS Chapter 276: Section 99. Powers and duties of commissioner of probation Section 99. The commissioner of probation shall supervise the probation work in all of the courts of the commonwealth and for such purposes he and his staff shall have access to all probation records of said courts. Subject to the approval of the chief justice for administration and management, the commissioner shall establish reports and forms to be maintained by probation officers; procedures to be followed by probation officers; standards and rules of probation work, including methods and procedures of investigation, mediation, supervision, case work, record keeping, accounting, caseload and case management. The commissioner shall promulgate rules and regulations concerning probation officers or offices provided said rules and regulations have been approved in writing by the chief justice for administration and management subject to chapter one hundred and fifty E. The commissioner shall assist the chief justice for administration and management in developing standards and procedures for the performance evaluation of probation officers, and shall assist each first justice in evaluating the work performance of probation officers. The commissioner shall receive all notices of intended disciplinary action against a probation officer or supervising probation officer including reprimand, fine, suspension, demotion or discharge, that may be initiated by a first justice, supervisor or chief probation officer. The commissioner shall develop and conduct basic orientation and in-service training programs for probation officers, such programs to be held at such times and for such periods as he shall determine. He shall conduct research studies relating to crime and delinquency, and, may participate with other public and private agencies in joint research studies. The commissioner shall have the responsibility for assessing the needs of probation offices and assisting the first justices in this effort. He may recommend to first justices, or the chief justice for administration and management the appointment and assignment of additional probation or clerical personnel or both. The commissioner shall annually submit written budget recommendations for the probation service to the chief justice for administration and management. These recommendations shall be in addition to the budget requests submitted by the first justices on behalf of their respective courthouse or courthouses, including probation offices. The commissioner shall annually conduct regional meetings with chief probation officers to discuss the budget needs of the local probation offices. The commissioner may hold conferences on probation throughout the commonwealth. The traveling expenses of trial court justices or probation officers authorized by the chief justice for administration and management to attend any such conference shall be paid by the commonwealth.
PROBATION PROBATION OFFICERS Chapter 276: Section 99A. Repealed, 1992, 379, Sec. 192 PROBATION PROBATION OFFICERS Chapter 276: Section 99B. Probation officers; compensation Section 99B. (1) In those courts or regions having fewer than fifteen probation officers, all persons serving as chief probation officer or acting chief probation officer shall be allocated to the title of Chief or Acting Chief Probation Officer I, and in those courts or regions having fifteen or more probation officers, all persons so-serving shall be allocated to the title of Chief or Acting Chief Probation Officer II.
(2) All probation officers, except the chief probation officer, shall be compensated in accordance with the provisions of the applicable collective bargaining agreement, pursuant to the provisions of chapter one hundred and fifty E. The salaries of chief probation officers and acting chief probation officers shall be paid by the commonwealth in accordance with a schedule of salaries as recommended in writing by the chief administrative justice of the trial court and filed with the house and senate committees on ways and means.
(3) Upon initial appointment, a probation officer shall be compensated at the minimum of said salary schedule for his group or, if he shall have had prior service as a probation officer or shall, in the judgment of the committee on probation, have had years of similar service in allied fields, the step for such group to which his years of prior service entitle him.
(4) Upon completion of each year of service, a probation officer shall be compensated at the next higher step, if any, of said salary schedule for his group.
(5) Upon promotion (including, in the case of a chief probation officer, a change in his class due to an increase in the number of probation officers his probation office has), a probation officer shall be compensated at the lowest step of his new group which is at least one increment of his new group, but less than two such increments, higher than his salary immediately prior to such promotion, and upon the completion of each year of service in his new group, shall be compensated at the next higher step, if any, of said salary schedule for such new group. Notwithstanding any other provision of this section, no chief probation officer shall receive a salary less than the next increment greater than the salary received by the first assistant chief probation officer in the same court.
PROBATION PROBATION OFFICERS Chapter 276: Section 99C. Repealed, 1978, 478, Sec. 296 PROBATION PROBATION OFFICERS Chapter 276: Section 99D. Repealed, 1986, 520, Sec. 3 PROBATION PROBATION OFFICERS Chapter 276: Section 99E. Indigency; interagency service agreements; income data verification Section 99E. (a) The commissioner of probation shall enter into an interagency service agreement with the department of revenue to verify income data and other information relevant to the determination of indigency of recipients of counsel pursuant to section 2 of chapter 211D.
(b) The commissioner of probation shall enter into an interagency service agreement with the department of transitional assistance to verify income data and other information relevant to the determination of indigency of recipients of counsel pursuant to section 2 of chapter 211D.
(c) The commissioner of probation shall enter into an interagency service agreement with the department of medical assistance to verify income data and other information relevant to the determination of indigency of recipients of counsel pursuant to section 2 of chapter 211D.
(d) The commissioner of probation shall enter into an interagency service agreement with the registry of motor vehicles to verify the statements on motor vehicle ownership or nonownership by recipients of counsel pursuant to section 2 of chapter 211D.
Section 1. The following words, as used in this chapter, unless the context otherwise requires, shall have the following meanings:—“Assessment”, a thorough and complete measurement of the needs of an individual in, but not limited to, the following areas: education, vocational training, job placement, mental and physical health, family and social services, and an analysis of a defendant’s commitment to participate in a program of community supervision and services.
“Commissioner”, the commissioner of probation.
“Director”, the person in charge of the operation of a program of community supervision and services.
“Official designee”, a representative of a program of community supervision and service who has been approved by the presiding justice of a district court to work in conjunction with that court’s probation office to screen defendants who may be eligible for diversion.
“Plan of service”, a comprehensive and cohesive set of recommended programs and specific services to meet the needs of individuals as determined through assessment.
“Program”, any program of community supervision and services certified or approved by the commissioner of probation under the provisions of section eight, including, but not limited to, medical, educational, vocational, social and psychological services, corrective and preventive guidance, training, performance of community service work, counseling, provision for residence in a halfway house or other suitable place, and other rehabilitative services designed to protect the public and benefit the individual.
Section 2. The district courts, and in Boston, the municipal court of the city of Boston, shall have jurisdiction to divert to a program, as defined in section one, any person who is charged with an offense or offenses against the commonwealth for which a term of imprisonment may be imposed and over which the district courts may exercise final jurisdiction and who has reached the age of seventeen years but has not reached the age of twenty-two, who has not previously been convicted of a violation of any law of the commonwealth or of any other state or of the United States in any criminal court proceeding after having reached the age of seventeen years, except for traffic violations for which no term of imprisonment may have been imposed, who does not have any outstanding warrants, continuances, appeals or criminal cases pending before any courts of the commonwealth or any other state or of the United States, and who has received a recommendation from a program that he would, in light of the capacities of and guidelines governing it, benefit from participation in said program.
Section 3. The probation officers of a district or municipal court, or their official designee, when gathering information in accordance with section eighty-five of chapter two hundred and seventy-six, shall also screen each defendant for the purpose of enabling the judge at arraignment to consider the eligibility of the defendant for diversion to a program.
Any defendant who is qualified for consideration for diversion to a program may, at his arraignment, be afforded a fourteen-day continuance for assessment by the personnel of a program to determine if he would benefit from such program.
If a defendant chooses to accept the offer of a continuance for the purpose of such an assessment, he shall so notify the judge at arraignment. Upon receipt of such notification, the judge shall grant a fourteen-day continuance. The judge, through the probation office or its official designee, shall direct the defendant to a program and shall inform said program of such action.
The judge may, in his discretion, grant a defendant who is preliminarily determined not to be eligible because of a failure to satisfy all the requirements of section two, a like fourteen-day continuance for assessment. In arriving at such a decision the opinion of the prosecution should be taken into consideration. Such a continuance may be granted upon the judge’s own initiative or upon request by the defendant.
eligible persons Section 4. In the event that an individual who is eligible under the provisions of section two is charged with a violation of chapter ninety-four C, nothing in this chapter shall be construed to limit the effect or operation of sections thirty-eight to fifty-five, inclusive, of chapter one hundred and twenty-three.
In the event that an individual who is eligible under the provisions of section two is charged with a violation of one or more of the offenses enumerated in section three of chapter one hundred and twenty-three A, the provisions of this chapter shall not be applicable for said defendant.
A person charged with violating the provisions of subsection (a) of section fifteen A, subsection (a) of section fifteen B, subsection (a) of section eighteen and subsection (a) of section nineteen of chapter two hundred and sixty-five or subsection (a) of section twenty-five of chapter two hundred and sixty-six shall, for the second or subsequent such offense, not be diverted to a program as provided in section two.
determination; stay of criminal proceedings Section 5. Upon the expiration of a fourteen-day continuance granted pursuant to section three, the director of the program to which the defendant has been referred shall submit to the court a written report of its assessment. The report shall contain the information obtained through the program’s assessment, the program’s recommendation as to whether the defendant would benefit from diversion to the program, and a plan of services for the defendant if it has been determined that the defendant would so benefit.
The judge, upon receipt of the report, shall provide an opportunity for a recommendation by the prosecution regarding the diversion of the defendant. After receiving the report and having provided an opportunity for the prosecution to make its recommendation, the judge shall make a final determination as to the eligibility of the defendant for diversion to the program. The criminal proceedings of a defendant who qualifies for diversions under section two and who agrees to abide by the terms and conditions contained in the plan of services approved by the judge, shall be stayed for a period of ninety days, unless the judge in his discretion considers that the interest of justice would best be served by a hearing of the facts, after which the case may be continued without a finding for ninety days. No appeal shall be allowed from such final determination.
A defendant who has been determined to be ineligible by reason of his failure to satisfy certain provisions of section two, but who, in the judge’s discretion, received a fourteen-day continuance for assessment, may, on the basis of the report submitted by a program, be granted a like stay of proceedings.
In no event shall a stay of proceedings be granted pursuant to this section unless the defendant consents in writing to the terms and conditions of the stay of proceedings and knowingly executes a waiver of his right to a speedy trial on a form approved by the chief justice of the district courts, and, in Boston, the chief justice of the municipal court of the city of Boston. Such consent shall be with the advice of defendant’s counsel. Any request for assessment, or a decision by the defendant not to enter such a program, or a determination by the program that the defendant would not benefit from it, or any statement made by the defendant during the course of assessment, shall not be admissible against the defendant in any criminal proceedings; nor shall any consent by the defendant to the stay of proceedings or any act done or statement made in fulfillment of the terms and conditions of such stay of proceedings be admissible as an admission, implied or otherwise, against the defendant, should the stay of proceedings be terminated and criminal proceedings resumed on the original charge or charges. No statement or other disclosure or records thereof made by a defendant during the course of assessment or during the stay of proceedings shall be disclosed at any time to a prosecutor or other law enforcement officer in connection with the charge or charges pending against said defendant or any co-defendant.
stay Section 6. During a stay of proceedings or a continuance without a finding, as provided in section five, the director of a program shall submit periodic reports to the court relative to the progress of the defendant. The director shall also report violations of program conditions or subsequent arrests immediately upon notice thereof.
If the defendant during the stay of proceedings or a continuance without a finding violates a condition of the program or is charged with a subsequent offense, a judge in the court that entered the stay of proceedings may issue such process as is necessary to bring the defendant before the court. When the defendant is brought before the court, the judge shall afford him an opportunity to be heard. If the judge finds that the defendant has committed a violation of a condition of the program or that he has been charged with a subsequent offense, the judge may order, when appropriate, that the stay of proceedings be terminated and that the commonwealth proceed on the original charges as provided by law. No appeal shall be allowed from such an order.
successful completion or recommendation of extension Section 7. Upon the expiration of the initial ninety-day stay of proceedings or a continuance without a finding, the program director shall submit to the court a report indicating the successful completion of the program by a defendant or recommending an extension of the stay of proceedings or a continuance without a finding for not more than an additional ninety days, so that the defendant may complete the program successfully.
If the report indicates the successful completion of the program by a defendant, the judge may dismiss the original charges pending against the defendant. If the report recommends an extension of the stay of proceedings or a continuance without a finding, the judge may, on the basis of the report and any other relevant evidence, take such action as he deems appropriate, including the dismissal of the charges, the granting of an extension of the stay of proceedings or a continuance without a finding, or the resumption of criminal proceedings. In the event that an extension of the stay of proceedings or a continuance without a finding is granted, the program director shall submit a final report upon the expiration of such stay of proceedings.
Section 8. The office of the commissioner shall, in its discretion, certify, monitor and aid all programs to which defendants may be diverted pursuant to this chapter. The certification of programs shall be subject to the approval of the presiding justice of the individual court which would be the beneficiary of such services. The office of the commissioner shall, in its discretion, (a) issue for a term of two years, and may renew for like terms, a certification, subject to revocation for cause, to any person, partnership, corporation, society, association or other agency or entity of any kind, other than a licensed general hospital or a department, agency or institution of the federal government, the commonwealth or any political subdivision thereof, deemed to be responsible and suitable to establish and maintain such a program and to meet applicable certification standards and requirements; and in the case of a department, agency or institution of the commonwealth or any political subdivision thereof, grant approval to establish and maintain a program for a term of two years, and may renew such approval for like terms, subject to revocation for cause; (b) promulgate, in consultation with the advisory board established in section nine, rules and regulations establishing certification and approval standards and requirements; (c) establish limits for caseloads and enrollment so that programs are able to provide high quality intensive individualized service to those defendants participating in such programs; (d) procure, where appropriate, by contract, the personnel, facilities, services, and materials necessary to carry out the purposes of this act, subject to all applicable laws and regulations; (e) prepare reports for said advisory board showing the progress of all programs in fulfilling the purposes set forth; (f) notify the appropriate presiding justice of the individual court that adequate facilities and personnel are available to fulfill a plan of community supervision and services for that court; (g) provide technical assistance to such program as may be certified hereunder; (h) provide for the audit of any funds expended by the office for the support of programs certified hereunder; (i) promote the cooperation of all agencies which provide education, training, counseling, legal, employment, or other services to assure that eligible individuals released to programs may benefit to the maximum extent practicable; (j) prepare and submit an annual report to the chief justices of the supreme judicial, appeals, superior and district courts and to all justices in the district court system evaluating the performance of all programs.
Section 9. There shall be an advisory board to the office of the commissioner for the overseeing of programs. The members of the advisory board shall be the attorney general, the commissioners of education, mental health, rehabilitation and welfare, a district court judge, the deputy director of the division of employment and training, the president of the Massachusetts District Attorney’s Association, or their respective designees, and seven experts in the area of human services to the sociologically and economically disadvantaged through community based programs to be appointed by the governor for terms of two years, one of whom shall be an ex-offender. The members of the advisory board shall serve without compensation but shall be reimbursed for their expenses actually and necessarily incurred in the discharge of their duties. The advisory board shall annually select its chairman from among its members.
The advisory board shall assist the commissioner in coordinating the efforts of all public agencies and private organizations and individuals within the commonwealth concerned with the providing of services to defendants by said programs.
Chapter 277: Section 1. Issuance of writs of venire facias for grand jurors; attendance at sittings of court Section 1. The clerk of the courts for each county, except Suffolk, Middlesex, Essex, Hampden, Norfolk, Plymouth and Worcester shall, not less than twenty-eight days before the commencement of the first sitting of the superior court for criminal business in each year, issue writs of venire facias for forty-five veniremen, from whose numbers the court shall select twenty-three grand jurors who shall serve in said court until the first regular sitting in the year next after they have been impanelled and until another grand jury has been impanelled in their stead. In counties where sittings of the court are established for the transaction of criminal business, they shall be required to attend only at such sittings.
Chapter 277: Section 11. Re-summoning at same sitting Section 11. If the grand jury are dismissed before the court is adjourned without day, they may be summoned to attend again in the same sitting, at such time as the court orders.
Chapter 277: Section 12, 13. Repealed, 1979, 344, Sec. 33 Chapter 277: Section 14. Grand juror serving as traverse juror Section 14. No member of the grand jury which has found an indictment shall serve upon the jury for the trial thereof.
Chapter 277: Section 14A. Right to counsel; grand jury proceedings Section 14A. Any person shall have the right to consult with counsel and to have counsel present at every step of any criminal proceeding at which such person is present, including the presentation of evidence, questioning, or examination before the grand jury; provided, however, that such counsel in a proceeding before a grand jury shall make no objections or arguments or otherwise address the grand jury or the district attorney. No witness may refuse to appear for reason of unavailability of counsel for that witness.
Chapter 277: Section 15. Discharge of accused person not indicted Section 15. The grand jury shall, during its session, make daily return to the court of all cases wherein it has finally determined not to present an indictment against an accused person held in custody pending its action, and such person shall thereupon forthwith be discharged by order of the court unless he is held on other process. Whoever is held in custody on a charge of crime shall be discharged if he is not indicted before the end of the second sitting of the court at which he is held to answer, unless the court finds that the witnesses for the prosecution have been enticed or kept away, or are detained and prevented from attending the court by illness or accident, and except as provided in the following section.
Chapter 277: Section 16. Repealed, 1970, 888, Sec. 7 Chapter 277: Section 17. Repealed, 1979, 344, Sec. 33 Chapter 277: Section 18. Circumstances of the act Section 18. The circumstances of the act may be stated according to their legal effect, without a full description thereof.
Chapter 277: Section 19. Name of accused person; description by fictitious name; entry of true name Section 19. If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown. An indictment of the defendant by a fictitious or erroneous name shall not be ground for abatement; but if at any subsequent stage of the proceedings his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings, with a reference to the fact that he was indicted by the name or description mentioned in the indictment.
Chapter 277: Section 1A. Completion of investigations by grand juries; notice; order Section 1A. Upon a written notice by the attorney general or any district attorney made to any justice of the superior court that public necessity requires further time by a grand jury to complete an investigation then in progress, the court may order such grand jury to continue to serve until said investigation has been completed and shall take up no new matter.
This section shall not be construed to prevent the issuance of writs of venire facias authorized by section one for impanelling a grand jury whose duty shall include all business not then before the grand jury continued under authorization of this section.
Chapter 277: Section 2. Suffolk county; issuance of writs of venire facias for grand jurors Section 2. The clerk of the superior court for criminal business in Suffolk county shall, not less than twenty-eight days before the first Mondays of January and July, respectively, issue writs of venire facias for forty-five veniremen of whom thirty-nine shall be from Boston and two each from Chelsea, Revere and Winthrop. From these forty-five veniremen the court shall then select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for six months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 20. Time and place of commission of crime Section 20. The time and place of the commission of the crime need not be alleged unless it is an essential element thereof. The allegation of time in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed before the finding of the indictment, after it became a crime, and within the period of limitations. The name of the county and court in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed within the territorial jurisdiction of the court. All allegations of the indictment shall, unless otherwise stated, be considered to refer to the same time and place.
Chapter 277: Section 21. Means Section 21. The means by which a crime is committed need not be alleged in the indictment unless an essential element of the crime.
Chapter 277: Section 22. Description of written instrument; variance Section 22. If an allegation relative to a written instrument consisting wholly or in part of writing, print or figures is necessary, it may describe such instrument by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy or facsimile of the whole or of any part thereof; and no variance between such recital or description and the instrument produced at the trial shall be material, if the identity of the instrument is evident and the purport thereof is so described as not to prejudice the defendant.
Chapter 277: Section 23. Description of money Section 23. If an allegation relative to any bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations or other securities for money of any country, state, county, city, town, bank, corporation, partnership or person is necessary, it may describe it as money, without specifying any particulars thereof; and such descriptive allegation shall be sustained by proof of any amount of bullion, money, notes or other securities for money as aforesaid, although the particular nature thereof shall not be proved.
Chapter 277: Section 24. Description of value or price Section 24. The value or price of property need not be stated, unless an essential element of the crime. If the nature, degree or punishment of a crime depends upon the fact that the property exceeds or does not exceed a certain value, it may be described, as the case may be, of more than that value, or of not more than that value.
Chapter 277: Section 25. Description of ownership Section 25. If an indictment for a crime involving the commission or attempted commission of an injury to property describes the property with sufficient certainty in other respects to identify the act, it need not allege the name of the owner.
Chapter 277: Section 26. Description of public place Section 26. If one element of the criminality of an act is its commission in a public place, and if such place is not more particularly defined in the statute, the act may be alleged generally to have been committed “in a public place”.
Chapter 277: Section 27. Description of animal Section 27. In an indictment for the larceny of an animal, or for any other crime in respect thereof, it may be described by the name by which it is commonly known, without stating its age or sex or whether it is alive or dead.
Chapter 277: Section 28. Description of judicial proceedings Section 28. If it is necessary to set forth the judicial proceedings in any case then or formerly pending in any court, civil or military, or any proceedings before a justice of the peace or any other magistrate, only the substance of said proceedings or such part thereof as shall constitute in whole or in part the crime charged need be alleged.
Chapter 277: Section 29. Criminal responsibility Section 29. An allegation that the defendant committed the act charged shall be a sufficient allegation that he was criminally responsible therefor.
Chapter 277: Section 2A. Issuance of writs of venire facias for special grand jury Section 2A. The clerk of the courts in any county, or in Suffolk county the clerk of the superior court for criminal business, shall, upon written request of the attorney general accompanied by a certificate that public necessity requires such action, signed by the chief justice of the superior court, issue writs of venire facias for forty-five veniremen of whom the court shall select twenty-three for service as a special grand jury to hear, consider and report on such matters as the attorney general may present. Said jurors shall serve for a period of six months, unless sooner discharged by the attorney general or by the said chief justice, and shall be drawn, summoned and returned in the same manner, and shall have the same powers and receive the same compensation, as grand jurors summoned for service under sections one and two, and the provisions of sections three to fourteen, so far as apt, shall apply to such jurors. In Middlesex county, the clerk of the courts shall send a letter of venire to the jury commissioner as set forth in section twelve of chapter two hundred and thirty-four A.
Chapter 277: Section 2B. Middlesex county; issuance of letters of venire for grand jurors Section 2B. The clerk of courts in Middlesex county shall, not less than seventy days before the first Monday of January and July, respectively, issue letters of venire to the jury commissioner for thirty-five prospective grand jurors from whom the court shall select twenty-three grand jurors who shall serve in said court for each sitting thereof for six months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2C. Hampden county; issuance of writs of venire facias for grand jurors Section 2C. The clerk of the court for Hampden county shall, not less than twenty-eight days before the first Mondays of January and May, and the second Monday of September respectively, issue writs of venire facias for forty-five veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for four months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2D. Plymouth county; issuance of writs of venire facias for grand jurors Section 2D. The clerk of the court for Plymouth County shall, not less than twenty-eight days before the first Mondays of January and May, and the second Monday of September respectively, issue writs of venire facias for forty-five veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for four months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2E. Worcester county; issuance of writs of venire facias for grand jurors Section 2E. The clerk of the court for Worcester county shall, not less than twenty-eight days before the first Mondays of January and May, and the second Monday of September, respectively, issue writs of venire facias for fifty veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for four months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2F. Norfolk county; issuance of writs of venire facias for grand jurors Section 2F. The clerk of the court for Norfolk county shall, not less than twenty-eight days before the first Mondays of January and July respectively, issue writs of venire facias for fifty veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for six months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2G. Essex county; issuance of writs of venire facias for grand jurors Section 2G. The clerk of the court for Essex county shall, not less than twenty-eight days before the first Mondays of January and May, and the second Monday of September respectively, issue writs of venire facias for forty-five veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for four months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 2H. Bristol county; issuance of writs of venire facias for grand jurors Section 2H. The clerk of the court for Bristol county shall, not less than twenty-eight days before the first Mondays of January and July respectively, issue writs of venire facias for fifty veniremen from whom the court shall select twenty-three grand jurors to serve in said court, who shall serve for each sitting thereof for six months and until another grand jury has been impanelled in their stead.
Chapter 277: Section 3. Drawing and summoning of grand jurors Section 3. Grand jurors shall be drawn, summoned and returned in the same manner as traverse jurors; and, if drawn at the same time with traverse jurors, the number of persons required whose names are first drawn shall be returned as grand jurors, and those whose names are afterward drawn shall be returned as traverse jurors. In Middlesex county, the selection and management of grand jurors shall be governed by chapter two hundred and thirty-four A and other applicable provisions of the General Laws.
Chapter 277: Section 30. Intent to injure or defraud; general allegation Section 30. If an intent to injure or defraud is an essential element of a crime, an intent to injure or defraud may be alleged generally, without naming the person, corporation or government intended to be injured or defrauded. Proof of an intent to injure or defraud any person or body corporate shall be competent to support the allegation.
Chapter 277: Section 31. Alternative allegations Section 31. Different means or different intents by or with which a crime may be committed may be alleged in the same count in the alternative.
Chapter 277: Section 32. Continuing offenses Section 32. An allegation that a crime was committed or that certain acts were done during a certain period of time next before the finding of the indictment shall be a sufficient allegation that the crime alleged was committed or that the acts alleged were done on divers days and times within that period.
Chapter 277: Section 33. Unnecessary and immaterial allegations Section 33. Presumptions and conclusions of law, matters of which judicial notice is taken and allegations not required to be proved need not be alleged. An indictment shall not be considered defective or insufficient because it omits to allege that the crime was committed, or the act was done “traitorously”, “feloniously”, “burglariously”, “wilfully”, “maliciously”, “negligently”, “unlawfully” or otherwise similarly to describe the crime, unless such description is an element of the crime charged, or because it omits to allege that the crime was committed or done with “force and arms”, or “against the peace”, or against the form of the statute or statutes, or against a by-law, ordinance, order, rule or regulation of any public authority, or because it omits to state or misstates the title, occupation, estate or degree of the defendant or of any other person named in the indictment, or of the name of the county, city, town or place of his residence, unless such omission or misstatement tends to the prejudice of the defendant, or by reason of describing a fine or forfeiture as enuring to the use of the commonwealth instead of to the use of the county, city or town, or by reason of any misstatement as to the appropriation of any fine or forfeiture, or by reason of its failure to allege or recite a special statute or a by-law or ordinance of a city or town or order of the mayor and aldermen or selectmen or rules or regulations of any public board of officers.
Chapter 277: Section 34. Immaterial defects Section 34. An indictment shall not be dismissed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars.
Chapter 277: Section 35. Variance; prejudice Section 35. A defendant shall not be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence. He shall not be acquitted by reason of an immaterial misnomer of a third party, an immaterial mistake in the description of property or the ownership thereof, failure to prove unnecessary allegations in the description of the crime or any other immaterial mistake in the indictment.
Chapter 277: Section 35A. Repealed, 1979, 344, Sec. 35 Chapter 277: Section 36. Scope of word “oath” Section 36. The word “oath” as used in an indictment shall include an “affirmation”.
Chapter 277: Section 37. Negativing excuses, exceptions or provisos Section 37. An excuse, exception or proviso not stated in the enacting clause of a statute creating a crime or stated only by reference to other provisions of the statute need not be negatived in the indictment unless necessary for a complete definition of the crime. If any statute shall prescribe a form of indictment in which an excuse, exception or proviso is not negatived, it shall be taken that it is not necessary to a complete definition of the crime that they should be negatived. If a statute creating a crime permits an act, therein declared to be criminal, to be performed without criminality under stated conditions, such conditions need not be negatived.
Chapter 277: Section 38. Allegations, bill of particulars, presumption and proof in prosecutions involving controlled substances Section 38. In a prosecution under any provision of chapter ninety-four C, for unlawfully manufacturing, dispensing or distributing a controlled substance in violation of any provision of said chapter, it shall be sufficient to allege that the defendant did unlawfully manufacture, dispense or distribute, as the case may be, such alleged substance, without any further allegations, without naming the person to whom it dispensed or distributed, or quantity of the substance; but the defendant shall be entitled to a bill of particulars. In such a prosecution, a defendant relying upon a prescription, written order, receipt, registration, appointment or authority, or exemption as a defense or justification shall prove the same, and until he has proved it the presumption shall be that he is not so justified or authorized.
Chapter 277: Section 39. Construction of words used in indictment Section 39. The words used in an indictment may, except as otherwise provided in this section, be construed according to their usual acceptation in common language; but if certain words and phrases are defined by law, they shall be used according to their legal meaning.
The following words, when used in an indictment, shall be sufficient to convey the meaning herein attached to them:Adultery.
—Sexual intercourse by a married person with a person not his spouse or by an unmarried person with a married person.
Affray.
—Fighting together of two or more persons in a public place to the terror of the persons lawfully there.
Aggravated Rape.
—Sexual intercourse or unnatural sexual intercourse by a person with another person who is compelled to submit by force and against his will or by threat of bodily injury; and either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of an offense defined in section fifteen A, fifteen B, seventeen, nineteen or twenty-six of chapter two hundred and sixty-five, section fourteen, fifteen, sixteen, seventeen or eighteen of chapter two hundred and sixty-six, or section ten of chapter two hundred and sixty-nine.
False Pretences.
—False representations made by word or act of such a character, or made under such circumstances and in such a way, with the intention of influencing the action of another, as to be punishable.
Forgery.
—The false making, altering, forging or counterfeiting of any instrument described in section one of chapter two hundred and sixty-seven, or any instrument which, if genuine, would be a foundation for or release of liability of the apparent maker.
Fornication.
—Sexual intercourse between an unmarried male and an unmarried female.
Murder.
—The killing of a human being, with malice aforethought.
Rape.
—Sexual intercourse or unnatural sexual intercourse by a person with another person who is compelled to submit by force and against his will or by threat of bodily injury, or sexual intercourse or unnatural sexual intercourse with a child under sixteen years of age.
Robbery.
—The taking and carrying away of personal property of another from his person and against his will, by force and violence, or by assault and putting in fear, with intent to steal.
Stealing. Larceny.
—The criminal taking, obtaining or converting of personal property, with intent to defraud or deprive the owner permanently of the use of it; including all forms of larceny, criminal embezzlement and obtaining by criminal false pretences.
Chapter 277: Section 3A. Suffolk county; impanelling grand jurors Section 3A. On the day when veniremen are summoned pursuant to section one, section two, section two A, section two B, section two C, section two D, section two E or section two F to attend court for the formation of a grand jury, the clerk of courts in any county, or in Suffolk county the clerk of the superior court for criminal business, shall cause the name of each person so summoned, and who appears and who has not been excused or set aside, to be written on separate ballots, substantially of uniform size, and shall cause such ballots to be placed in a box provided therefor. The clerk in open court, after shaking the ballots thoroughly, shall draw them out in succession until he has drawn the names of twenty-three grand jurors.
Chapter 277: Section 4. Deficiency of grand jurors Section 4. If there is a deficiency of grand jurors, writs of venire facias may be issued to the constables of such towns as the court orders to return forthwith the further number of grand jurors required. In Middlesex county, letters of venire shall be issued to the jury commissioner as set forth in chapter two hundred and thirty-four A.
Chapter 277: Section 40. Repealed, 1979, 344, Sec. 37 Chapter 277: Section 41. Indictment for criminal dealing with personal property Section 41. In an indictment for criminal dealing with personal property with intent to steal, an allegation that the defendant stole said property shall be sufficient; and such indictment may be supported by proof that the defendant committed larceny of the property, or embezzled it, or obtained it by false pretences.
Chapter 277: Section 42. Prosecutions for buying, receiving or aiding in concealment of stolen property Section 42. In prosecutions for buying, receiving or aiding in the concealment of stolen property known to have been stolen, it shall not be necessary to allege or prove that the person who stole the property has been convicted.
Chapter 277: Section 43. Indictment for perjury Section 43. In an indictment for perjury alleged to have been committed in a criminal case an allegation of the substance of the crime shall be sufficient; if alleged to have been committed in a civil case, an allegation of the nature of the controversy in general terms shall be sufficient. In both cases, the court or magistrate before whom the oath or affirmation was taken shall be alleged, but no part of the proceeding in which, or the commission or authority of the court or person before whom, the perjury was committed need be alleged.
Chapter 277: Section 44. Indictment for subornation of perjury Section 44. If, in an indictment for subornation of perjury or for attempting to incite or procure another person to commit perjury, it is alleged that perjury has been committed, an allegation of the perjury as provided in the preceding section and an allegation that the defendant wilfully incited or procured said person to commit said perjury shall be sufficient. If it is not alleged that such perjury has been committed, an allegation of the substance of the crime with which the defendant is charged shall be sufficient, without allegations as to matters or things which by the preceding section are declared to be unnecessary.
Chapter 277: Section 45. Indictment for unnatural and lascivious acts Section 45. In an indictment under section thirty-five of chapter two hundred and seventy-two, an allegation that the defendant committed an unnatural and lascivious act with the person named or referred to in the indictment shall be sufficient.
Chapter 277: Section 46. Repealed, 1979, 344, Sec. 37 Chapter 277: Section 47. Arraignment; sentence; assignment of counsel Section 47. If a prisoner, under indictment for a capital crime, pleads guilty, upon being arraigned, the court shall award sentence against him; if he does not plead guilty, the court may assign him counsel and take all other measures preparatory to a trial, which shall, subject to the Massachusetts Rules of Criminal Procedure, be held as soon after the finding of the indictment as the other official duties of the justices will admit and the circumstances of the case require.
Chapter 277: Section 47A. Defenses or objections Section 47A. In a criminal case, any defense or objection based upon defects in the institution of the prosecution or in the complaint or indictment, other than a failure to show jurisdiction in the court or to charge an offense, shall only be raised prior to trial and only by a motion in conformity with the requirements of the Massachusetts Rules of Criminal Procedure. The failure to raise any such defense or objection by motion prior to trial shall constitute a waiver thereof, but a judge or special magistrate may, for cause shown, grant relief from such waiver. A defense or objection based upon a failure to show jurisdiction in the court or the failure to charge an offense may be raised by motion to dismiss prior to trial, but shall be noticed by the court at any time.
Chapter 277: Section 48, 49. Repealed, 1932, 180, Sec. 44 Chapter 277: Section 5. Impanelling and oath Section 5. The clerk of the court shall prepare an alphabetical list of the names of all persons returned as grand jurors, and, when they are to be impanelled, the first two persons named thereon shall be first called, and the following oath shall be administered to them:You, as grand jurors of this inquest for the body of this county of , do solemnly swear that you will diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge; the commonwealth’s counsel, your fellows’ and your own, you shall keep secret; you shall present no man for envy, hatred or malice, neither shall you leave any man unpresented for love, fear, favor, affection or hope of reward; but you shall present things truly, as they come to your knowledge, according to the best of your understanding; so help you God.
The other jurors shall then be called in such divisions as the court considers proper, and the following oath shall be administered to them:The same oath which your fellows have taken on their part, you and each of you on your behalf shall well and truly observe and keep; so help you God.
Chapter 277: Section 50. Repealed, 1936, 161, Sec. 1 Chapter 277: Section 51, 52. Repealed, 1979, 344, Sec. 40 Chapter 277: Section 53. District attorneys; authority and duty as to transferred cases Section 53. If a case is transferred for plea or trial and sentence pursuant to the Massachusetts Rules of Criminal Procedure, the district attorney for the county to which the case is transferred or the district attorney for the county from which the case is transferred shall have the same authority and duty in the case as if it had not been transferred, depending upon which of the district attorneys is to try the case.
Chapter 277: Section 54. Custody and delivery of prisoner Section 54. If a change of venue is ordered, the sheriff having custody of the prisoner shall forthwith deliver him to the sheriff of the county to which the venue has been changed, who shall receive and safely keep him as if the indictment had been found in such county.
Chapter 277: Section 55. Compensation of counsel of prisoner Section 55. A justice of the court, sitting at the trial or other proceedings upon an indictment for murder, may allow reasonable compensation for the services of counsel assigned to defend the prisoner if he is otherwise unable to procure counsel, and such compensation shall be paid by the county where the indictment is found.
Chapter 277: Section 56. Expenses of counsel of prisoner Section 56. The reasonable expenses incurred and paid by counsel assigned by the court for the defense of a person indicted for murder, who is otherwise unable to procure counsel, shall be paid by the commonwealth after approval by a justice sitting at the trial or other proceedings of the case.
Chapter 277: Section 57. Prosecutions of crimes committed near boundary line of counties, etc.
; crimes committed on sea Section 57. A crime committed on or within one hundred rods of the boundary line of two counties may be alleged to have been committed, and may be prosecuted and punished, in either county; and if committed on or within fifty rods of the boundary line of two judicial districts, it may be alleged to have been committed, and may be prosecuted and punished, in either district. A crime committed upon the sea within one league of the shore may be prosecuted and punished in an adjacent county.
Chapter 277: Section 57A. Venue in cases where crime was committed without county or territorial jurisdiction of court Section 57A. A defendant shall not be discharged for want of jurisdiction if the evidence discloses that the crime with which he is charged was actually committed without the county or the territorial jurisdiction of the court in which he is being tried; provided, that the attorney general or the district attorney petitions to the court before proceeding with the trial for leave to proceed, stating that he is in doubt from the state of the evidence then in his possession as to whether or not the crime was committed within the county or the territorial jurisdiction of the court, and the court after hearing said petition orders the trial to proceed.
Chapter 277: Section 58. Larceny Section 58. Larceny, whether at common law or as defined by section thirty of chapter two hundred and sixty-six, may be prosecuted and punished in any county where the defendant had possession of the property alleged to have been stolen.
Chapter 277: Section 58A1/2. Computer offenses; place of prosecution Section 58A1/2. The crimes described in sections thirty-three A and one hundred and twenty F of chapter two hundred and sixty-six and section one hundred and twenty-seven of said chapter two hundred and sixty-six when the personal property involved is electronically processed or stored data, either tangible or intangible, and data while in transit, may be prosecuted and punished in any county where the defendant was physically located at the time of the violation, or where the electronic data was physically located at the time of the violation.
Chapter 277: Section 58A. Buying, receiving, concealing or aiding in concealment of stolen or embezzled property Section 58A. The crime of buying, receiving or concealing a stolen motor vehicle or trailer, as defined in section twenty-eight of chapter two hundred and sixty-six, and the crime of buying, receiving or aiding in the concealment of stolen or embezzled property, as defined in section sixty of said chapter two hundred and sixty-six, may be prosecuted and punished in the same jurisdiction in which the larceny or embezzlement of any property involved in the crime may be prosecuted and punished.
Chapter 277: Section 58B. Embezzlement or fraudulent conversion or appropriation by fiduciaries Section 58B. The crime of embezzlement or fraudulent conversion or appropriation by a fiduciary of money, goods or property held or possessed by him, as set forth in section fifty-seven of chapter two hundred and sixty-six, including the fraudulent disposition or destruction of such property, may be prosecuted and punished in the county wherein is located the probate court which appointed the fiduciary or in any county where the deed or other instrument in writing creating the trust under which he served or acted was recorded or in any county where he had held or possessed the property as aforesaid after embezzling or fraudulently converting or appropriating the same, as well as in any county where he committed the act of embezzlement or fraudulent conversion or appropriation or other fraudulent disposition or destruction of property held or possessed by him as aforesaid.
Chapter 277: Section 59. Obtaining money or personal chattel by false pretences Section 59. The crime of obtaining money or a personal chattel by a false pretence, and the crime described in section thirty-one of chapter two hundred and sixty-six, may be alleged to have been committed, and may be prosecuted and punished, in any county where the false pretence was made, written or used, or in or through which any of the property obtained was carried, sent, transported or received by the defendant.
Chapter 277: Section 59A. Transmission of false reports, location of explosives, etc. Section 59A. The crime described in section fourteen of chapter two hundred and sixty-nine may be prosecuted and punished in the territorial jurisdiction in which the communication originates or is received.
Chapter 277: Section 6. Affirmation in lieu of oath Section 6. If a person who is returned as a grand juror is conscientiously scrupulous of taking the oath prescribed, he may affirm.
Chapter 277: Section 60. Homicide if injury is in one county and death in another Section 60. If a mortal wound is given, or if other violence or injury is inflicted, or if poison is administered, in one county, by means whereof death ensues in another county, the homicide may be prosecuted and punished in either county.
Chapter 277: Section 61. Crime committed at sea, etc.
, resulting in death in county Section 61. If a mortal wound is given, or if other violence or injury is inflicted, or if poison is administered, on the high seas or on land either within or without the commonwealth, by means whereof death ensues in any county thereof, the homicide may be prosecuted and punished in the county where the death happens.
Chapter 277: Section 62. Crime committed in commonwealth resulting in death outside commonwealth Section 62. If a mortal wound is given, or if other violence or injury is inflicted, or if poison is administered, in any county of the commonwealth, by means whereof death ensues without the commonwealth, the homicide may be prosecuted and punished in the county where the act was committed.
Chapter 277: Section 62A. Violations of chapter 209A; jurisdiction Section 62A. Any criminal violation of chapter two hundred and nine A may be prosecuted and punished in the territorial jurisdiction in which the violation was committed or in which the original order under said chapter two hundred and nine A was issued.
Chapter 277: Section 62B. Stalking; jurisdiction Section 62B. The crime of stalking, as set forth in section forty-three of chapter two hundred and sixty-five, may be prosecuted and punished in any territorial jurisdiction of the commonwealth wherein an act constituting an element of the crime was committed.
Chapter 277: Section 63. General provisions Section 63. An indictment for murder may be found at any time after the death of the person alleged to have been murdered. An indictment for an offense set forth in sections twenty-two, twenty-two A, twenty-three, twenty-four, and twenty-four B of chapter two hundred and sixty-five, or for conspiracy to commit any of said offenses or as an accessory thereto or any one or more of them may be found and filed within fifteen years of the date of commission of such offense. An indictment for an offense set forth in sections seventeen, eighteen, nineteen and twenty-one of said chapter two hundred and sixty-five or section seventeen of chapter two hundred and seventy-two or for conspiracy to commit any such crime or as an accessory thereto or any one or more of them may be found and filed within ten years of the date of commission of such offense. An indictment for any other crime shall be found and filed within six years after such crime has been committed; provided, however, that any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited.
Notwithstanding the foregoing provisions, if a victim of a crime set forth in section thirteen B, thirteen F, thirteen H, twenty-two, twenty-two A, twenty-three, twenty-four B, or twenty-six A of chapter two hundred and sixty-five, or section one, two, three, four, four A, four B, five, six, seven, eight, twelve, thirteen, seventeen, twenty-six, twenty-eight, twenty-nine A, twenty-nine B, thirty-three, thirty-four, thirty-five or thirty-five A of chapter two hundred and seventy-two is under the age of sixteen at the time such crime is committed, the period of limitation for prosecution shall not commence until the victim has reached the age of sixteen or the violation is reported to a law enforcement agency, whichever occurs earlier.
Chapter 277: Section 64. Limitation of new indictment against corporation after abatement or defeat of former indictment Section 64. If an indictment, duly found and returned within the time limited by law against a corporation to recover a pecuniary penalty, is abated or otherwise avoided or defeated by reason of any matter of form, or if after a verdict against such corporation judgment is arrested, or if a judgment against such corporation is reversed on writ of error, a new indictment for the same cause may be found and filed within one year after the abatement of the former indictment or the reversal of the judgment as aforesaid.
Chapter 277: Section 65. Service of copy of indictment for murder on prisoner, etc. Section 65. After the finding of an indictment for murder, the defendant, if in custody, shall forthwith be served by the sheriff or his deputy with a copy thereof and with an order of the court notifying him that the indictment will be entered forthwith upon the docket of the superior court for the county where found.
Chapter 277: Section 66. List of jurors to prisoners; process for witnesses Section 66. A prisoner indicted for a crime punishable with death or imprisonment for life, upon demand by him or his counsel upon the clerk, shall have a list of the jurors who have been returned and process to summon witnesses who are necessary to his defence, at the expense of the commonwealth.
Chapter 277: Section 67. Furnishing person in custody, etc.
, with copy of indictment Section 67. Whoever, having been indicted for felony, is under recognizance or in custody to answer therefor shall be entitled to a copy of the indictment and of all endorsements thereon without charge.
Chapter 277: Section 68. Issuance of subpoenas by attorney general and district attorneys Section 68. The attorney general and district attorneys may issue subpoenas under their hands for witnesses to appear and testify on behalf of the commonwealth, and such subpoenas shall have the same force, and be obeyed in the same manner, and under the same penalties, in case of default, as if issued by the clerk of the court.
Chapter 277: Section 69. Repealed, 1979, 344, Sec. 42 Chapter 277: Section 7 to 10. Repealed, 1979, 344, Sec. 33 Chapter 277: Section 70. Recognizance of witnesses Section 70. A justice of a court of record may at any time order a witness for the commonwealth in a criminal case or in a case under sections fifty-two to sixty-four, inclusive, of chapter one hundred and nineteen, pending in such court to recognize, with or without sureties, to appear and testify at the next or any succeeding sitting of said court, and may issue a warrant to bring such witness before him to recognize as aforesaid; but a witness unable to procure sureties shall not on that account be committed to jail except in cases of felony.
Chapter 277: Section 70A. Repealed, 1979, 344, Sec. 42 Chapter 277: Section 70B. Placing cases on file; statement of reasons Section 70B. Except as otherwise provided by law, a criminal case shall not be placed on file, on motion of a district attorney or assistant district attorney, unless such motion is accompanied by a written statement of the reasons for such disposition, signed by the district attorney or assistant district attorney, which shall be filed with the pleadings, and also accompanied by a statement of any previous criminal record of the accused.
Chapter 277: Section 70C. Civil infractions Section 70C. Upon oral motion by the commonwealth at arraignment or pretrial conference, the court may in its discretion treat a violation of a municipal ordinance, or by-law or a misdemeanor offense as a civil infraction. The provisions of this section shall not apply to the offenses in sections 22F, 24, 24D, 24G, 24L, and 24N of chapter 90, sections 8, 8A, and 8B of chapter 90B, chapter 119, chapter 119A, chapter 209, chapter 209A, chapter 265, sections 1, 2, 3, 6, 6A, 6B, 8B, 13, 13A, 13B, 13C, 14, 14B, 15, 15A, 16, 17, 18, 19, 20, 23, 28, 31 and 36 of chapter 268, chapter 268A, sections 10, 10A, 10C, 10D, 10E, 11B, 11C, 11E, 12, 12A, 12B, 12D and 12E of chapter 269 and sections 1, 2, 3, 4, 4A, 4B, 6, 7, 8, 12, 13, 16, 28, 29A and 29B of chapter 272. Where the commonwealth has moved at arraignment or pretrial conference to proceed civilly and the court has allowed that motion, the court shall not appoint counsel. If counsel has already been appointed, the court shall revoke the appointment. A person complained of for such civil infraction shall be adjudicated responsible upon such finding by the court and shall not be sentenced to any term of incarceration.
When the court has treated a violation of a municipal ordinance or by-law or a misdemeanor offense as a civil infraction under this section and the ordinance, by-law or misdemeanor in question does not set forth a civil fine as a possible penalty, the court may impose a fine of not more than $5,000. An adjudication of responsibility shall neither be used in the calculation of second and subsequent offenses under any chapter, nor as the basis for the revocation of parole or of a probation surrender. An adjudication of responsibility under this section may include an order of restitution.
Chapter 277: Section 71 to 72A. Repealed, 1979, 344, Sec. 42 Chapter 277: Section 73. Compensation for confinement of persons discharged Section 73. Any person in the commonwealth kept in confinement awaiting trial for more than six months after having been indicted, and finally acquitted or discharged without trial, if the delay in trial was not at his request or with his consent, or at the request or with the consent of his attorney of record, may receive compensation for the period of his confinement after the lapse of said six months and until his acquittal or discharge; provided, that the payment of compensation is approved by the justice who presided at the trial, or in the case of a discharge without trial, by a justice of the superior court sitting at a session for criminal business in and for the county where the indictment was found. Such compensation shall be paid by the commonwealth and shall be equivalent to the amount which the indicted person earned or received from his regular employment for any period of equal length during the two years immediately preceding his confinement; and if he had no employment, the compensation shall be such reasonable sum as shall be determined by the justice who presided at the trial, or, in the case of a discharge without trial, by a justice of the superior court sitting at a session for criminal business in and for the county where the indictment was found. The justice, upon application by the person acquitted or discharged, shall give a hearing at which such person or his representative may be present, if he so desires, and the district attorney or other officer representing the commonwealth may also be present, and the person acquitted or discharged and the commonwealth may offer testimony as in any civil case. The decision of the justice shall be final.
Chapter 277: Section 74 to 77. Repealed, 1979, 344, Sec. 42 Chapter 277: Section 78. Criminal proceedings as no bar to civil action Section 78. No proceedings against a person for a crime shall bar a civil action which might otherwise be maintained by a person aggrieved by the commission of the crime.
Chapter 277: Section 79. Application of annexed forms; schedule Section 79. The provisions of this chapter, and the forms hereto annexed, shall apply as well to complaints as to indictments, and such forms shall be sufficient in cases to which they are applicable. In other cases, forms as nearly like the forms hereto annexed as the nature of the cases and the provisions of law will allow may be used; but any other form of indictment or complaint authorized by law may be used.
SCHEDULE OF FORMS OF PLEADINGS.
Caption and Commencement of Indictment.
Commonwealth of Massachusetts. (Suffolk,) to wit:At the Superior Court holden at (Boston,) within and for the County of (Suffolk,) for the transaction of criminal business, on the day of in the year of our Lord one thousand, etc.
The jurors for the said Commonwealth on their oath presentCaption and Commencement of Complaint. (To a Police, District or Municipal Court.
) Commonwealth of Massachusetts. (Suffolk,) to wit:To the court of holden at for the transaction of criminal business, within the County of , A. B. of in behalf of the Commonwealth of Massachusetts on the day of in the year , on oath complains that(To a Trial Justice.
)To A. B.
, a Trial Justice in and for the County of and Commonwealth of Massachusetts, C. D. of (etc. as in form above).
(To a Justice of the Peace commissioned to Issue Warrants.
)To A. B.
, Justice of the Peace in and for the County of and Commonwealth of Massachusetts, designated and commissioned to issue warrants in criminal cases, C. D. of (etc. as in form above).
(If the statute requires a particular person to make complaint, this should be alleged.
) Abduction. (Under Chap. 272, Secs. 1, 2.
)—(1) That A.
B. did fraudulently and deceitfully entice (and take away) one C.
D.
, an unmarried person under the age of sixteen years, from the house of the father (or guardian, etc.
, as the case may be), without the consent of the said father (or guardian, etc.
, as the case may be), under whose care and custody said C.
D. was living, for the purpose of effecting a clandestine marriage of said C.
D. without the consent of said father (or guardian, etc.
, as the case may be).
(2) That A.
B. did fraudulently and deceitfully entice (and take away) C.
D. from his house (or, if a minor, from his father’s or guardian’s house; or if elsewhere, state it as the case may be), for the unlawful purpose of prostitution (or for the purpose of unlawful sexual intercourse).
Abortion. (Under Chap. 272, Sec. 19.
)—(1) That A.
B.
, with intent to procure the miscarriage of C.
D.
, did unlawfully administer to her (or advise, or prescribe for her, or cause to be taken by her) a certain drug (or medicine or other noxious thing, as the case may be).
If the woman dies, add “and in consequence thereof said C.
D. died”.
(2) That A.
B.
, with intent to procure the miscarriage of C.
D.
, did unlawfully use a certain instrument upon the body of said C.
D.
, and in consequence thereof said C.
D. died.
(3) That A.
B.
, with intent to procure the miscarriage of C.
D.
, did unlawfully do certain things (naming them) to (or upon the body of) said C.
D.
Accessory before the fact. (Under Chap. 274, Sec. 2.
)—Charge principal felony and proceed: That A.
B.
, before the said felony was committed, did incite, procure, aid, counsel, hire or command the said (principal) the said felony to do and commit.
Accessory after the fact. (Under Chap. 274, Sec. 4.
)—Charge principal felony and proceed: That A.
B. afterwards, well knowing the said C.
D. to have committed the felony aforesaid, did harbor, (conceal, maintain,) or assist said C.
D.
, with intent that said C.
D. should avoid or escape (detention, arrest,) trial, or punishment.
Adultery. (Under Chap. 272, Sec. 14.
)—(1) That A.
B.
, a married person, did commit adultery with C.
D.
, a person not his spouse.
(2) That A.
B.
, an unmarried person, did commit adultery with C.
D.
, a married person.
Affray.
—That A.
B. and C.
D. did make an affray.
Aggravated rape. (Under Chap. 265, Sec. 22(a).
)—That A.
B. did assault C.
D.
, with intent to commit aggravated rape; and did commit aggravated rape upon said C.
D.
Alcoholic Beverages. (Under Chap. 138, Sec. 2.
)—That A.
C. did expose and keep for sale alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, with intent unlawfully to sell the same.
Alcoholic Beverages—Sale. (Under Chap. 138, Sec. 2.
)—That A.
B. unlawfully did sell alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, to C.
C.
Alcoholic Beverages—Nuisance. (Under Chap. 139, Sec. 15.
)—That A.
B.
, during the three months next before the finding of this indictment, without legal authority, did keep and maintain a certain tenement in said (Boston), by him used for the illegal sale and illegal keeping for sale of alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, to the common nuisance of all the people.
Armed with dangerous weapon when arrested. (Under Chap. 269, Sec. 9.
)—(1) That A.
B.
, while being lawfully arrested on a sufficient warrant on a criminal charge, was armed with a dangerous weapon, to wit, a slung shot (or other dangerous weapon, as the case may be).
(2) That A.
B.
, while committing the crime of (here state crime), was lawfully arrested by C.
D.
, sheriff of said county, and when so arrested was armed with, and had on his person, a certain dangerous weapon (a slung shot, etc.
, as the case may be).
Arson. (Under Chap. 266, Secs. 1, 2, 4.
)—(1) That A.
B. wilfully and maliciously did burn the dwelling house of C.
D. in in said county.
(2) That A.
B. wilfully and maliciously did burn a building adjoining the dwelling house of C.
D. in in said county.
(3) That A.
B. wilfully and maliciously did set fire to a building in by the burning whereof the dwelling house of C.
D. was burned.
(4) That A.
B. wilfully and maliciously, in the night time, did burn (a) A meeting house (or church, town house, etc.
) in in said county, erected for public use.
(b) A banking house (or warehouse, etc.
) of C.
D. in in said county, of the value, with the property therein, of one thousand dollars and not the property of (the defendant).
(c) A barn (or stable or shop or office) of C.
D.
, in in said county, the same being there within the curtilage of the dwelling house of said C.
D.
(5) That A.
B. wilfully and maliciously did burn a building, by the burning whereof [(a), (b), or (c)] was burned in the night time.
(6) That A.
B. wilfully and maliciously did burn a banking house (or other structure mentioned in the statute, as the case may be) of C.
D.
, in in said county.
Assault and battery.
—That A.
B. did assault and beat C.
D.
Assault to maim, etc. (Under Chap. 265, Sec. 15.
)—That A.
B. did assault C.
D.
, with the malicious intent to maim (or disfigure) said C.
D. by cutting out his tongue (or other facts required by the nature of the case).
Assault to murder. (Under Chap. 265, Sec. 15.
)—That A.
B. did assault C.
D.
, with intent to murder him.
Assault to Rape. (Under Chap. 265, Sec. 24.
)—(1) That A.
B. did assault C.
D.
, with intent to commit rape.
(2) That A.
B. did assault C.
D.
, a child under the age of sixteen years, with intent unlawfully and carnally to know and abuse.
Assault with dangerous weapon, with intent to rob, etc. (Under Chap. 265, Sec. 18.
)—That A.
B.
, being armed with a dangerous weapon, did assault C.
D.
, with intent to rob him (or to murder him).
Assault upon an officer.
—That A.
B. did assault and beat C.
D.
, who was a police officer of the (city of Boston) (or whatever the fact may be), and who was also in the lawful discharge of his duties as such officer, as said (defendant) well knew, (and knowingly resisted and obstructed him in the discharge of his lawful duties). This clause may be added if facts require.
Assuming to be an officer. (Under Chap. 268, Sec. 33.
)—That A.
B. did falsely assume and pretend to one C.
D. that he, said A.
B.
, was a police officer of (the city of ) (or a constable of the city of ), and did take upon himself to act as such officer, and did (state what he did if desired).
Attempt to break and enter. (Under Chap. 274, Sec. 6.
)—That A.
B. did attempt to break and enter a certain building in said (Boston) of one C.
D.
, in the (night) time, with intent therein to commit larceny, and in such attempt did (set out the overt act relied on); but did fail in the perpetration of said attempted offence (or was intercepted and prevented in the execution of said attempted offence).
Attempt to commit crime. (Under Chap. 274, Sec. 6.
)—That A.
B. did attempt to commit larceny of the property of (another), (or such other crime as may be intended to be charged), and in such attempt did (set out the overt act relied on); but did fail in the perpetration of said attempted offence (or was intercepted and prevented in the execution of said attempted offence).
Attempt to steal from person. (Under Chap. 274, Sec. 6.
)—That A.
B. did attempt to steal from the person of C.
D.
, and in such attempt did put his hand against the person and into the pocket of the said C.
D.
; but did fail in the perpetration of said attempted offence (or was intercepted and prevented in the execution of said attempted offence).
Breaking, entering, etc. (Under Chap. 266, Secs. 16-19.
)—(1) That A.
B. did break and enter in the night time the building (or ship or vessel) of one X.
, situated in said (Boston), with intent therein to commit murder (or rape, robbery, etc.
).
(2) That A.
B. did break and enter (or entered in the night time without breaking) a building (or ship or vessel) of one X.
, in said (Boston), with intent (as above), the said X. (or other person), who was lawfully therein, being put in fear.
(3) That A.
B. did break and enter (or entered in the night time without breaking) a railroad car situated in said (Boston), of the (name of the railroad), with intent therein to commit larceny (or murder, etc.
, as the case may be).
(4) That A.
B. did enter in the night time the dwelling house of one X.
, in said (Boston), with intent therein to commit larceny (or murder, etc.
, as the case may be).
(5) That A.
B. did break and enter a building (or ship or vessel) of one X.
, in said (Boston), with intent therein (etc. as above).
Breaking glass. (Under Chap. 266, Sec. 114.
)—That A.
B. did wantonly (or maliciously) break certain panes of glass in and part of a certain building, the property of C.
D. in said (Boston).
Burglarious implements. (Under Chap. 266, Sec. 49.
)—That A.
B. knowingly did have in his possession certain machines, tools and implements adapted and designed for cutting through, forcing and breaking open buildings, rooms, vaults, safes (and other depositories), in order to steal therefrom such money and other property as might be found therein, said A.
B. knowing said machines, tools and implements to be adapted and designed for the purpose aforesaid, and intending to use and employ them therefor.
Burglary, etc. (Under Chap. 266, Secs. 14, 15.
)—(1) That A.
B. in the night time did break and enter the dwelling house of C.
D.
, situated in said (Boston), with intent therein to commit larceny (or murder, rape or robbery, as the case may be).
(If desired add actual larceny in the building.
)(2) That A.
B. did enter the dwelling house of one X.
, situated in said (Boston), with intent therein to commit larceny, and after having so entered with said intent did break said dwelling house in the night time, X. being lawfully therein, and said A.
B. being armed with a dangerous weapon at the time of such entry (or such breaking) (or arming himself with a dangerous weapon in said house) (or did make an assault on said X.
, who was lawfully therein).
(3) That A.
B. did break and enter the dwelling house of one X.
, in said (Boston), in the night time, with intent therein to commit larceny (or murder, etc.
, as the case may be).
Burning to defraud insurance company. (Under Chap. 266, Sec. 10.
)—That A.
B. did burn a certain building in in said county, [or certain goods, wares and merchandise (or other chattels—name the property)] which was (or were) at the time of such burning insured in the Insurance Company, a corporation duly established by law, against loss or damage by fire, with the intent thereby to injure the said insurer.
Common drunkard. (Under Chap. 272, Sec. 53.
)—That A.
B.
, during the three months next before the making of this complaint, was a common drunkard.
Common nightwalker. (Under Chap. 272, Sec. 53.
)—That A.
B.
, during the three months next before the making of this complaint, was a common nightwalker, habitually walking in the streets in the night time for the purpose of prostitution.
Concealing mortgaged personal property. (Under Chap. 266, Sec. 82.
)—That A.
B. did mortgage to X. in due form of law certain personal property (setting out the mortgaged property), and that afterward, the said mortgage being in full force and effect, and the said X. remaining the owner thereof (if such be the fact), said A.
B. did remove and conceal the said property with fraudulent intent to place the same beyond the control of the said X.
Conspiracy.
—(1) That A.
B. and C.
D. conspired together to murder one E.
F.
(2) That A.
B. and C.
D. conspired together to commit rape upon E.
F.
(3) That A.
B. and C.
D. conspired together to steal the property, money, etc.
, of E.
F.
Cruelty to animals. (Under Chap. 272, Sec. 77.
)—(1) That A.
B. did overdrive (overload) (drive when overloaded) (overwork) (torture) (torment) (deprive of necessary sustenance) (cruelly beat) (cruelly mutilate) (cruelly kill) a certain horse (or dog, etc.
).
(2) That A.
B. did cause and procure one C.
D. to overdrive (etc.
) a certain horse (etc.
).
(3) That A.
B.
, having the charge and custody of a certain horse (etc.
), did inflict unnecessary cruelty upon it.
(4) That A.
B.
, having the charge and custody of a certain horse (etc.
), did unnecessarily fail to provide it with proper food (or drink or shelter or protection from the weather).
Disorderly house. (Under Chap. 219, Sec 27.
)—That A.
B.
, during the three months next before the finding of this indictment, at said (Boston) did keep and maintain a certain and common, noisy, ill-governed and disorderly house, resorted to for the purpose of drinking, quarrelling, making great noises, and breaking and disturbing the peace, to the common nuisance of all the people.
Drunkenness. (Under Chap. 272, Sec. 48.
)—That A.
B. was, by the voluntary use of intoxicating liquor, drunk.
Eavesdropping. (Under Chap. 272, Sec. 99.
)—That A.
B. did commit the crime of eavesdropping.
Escape. (Under Chap. 268, Sec. 16.
)—That A.
B.
, being lawfully imprisoned in the House of Correction (or the Massachusetts correctional institution) in said county, did break therefrom and escape.
Exposure of person.
—That A.
B.
, in a public place in said (Boston), wherein were great numbers of people, indecently did expose to the view of the said people his body and person naked and uncovered.
Forged endorsement.
—That A.
B. did forge a certain endorsement in and upon the back of, and as a part of, a certain promissory note, with intent to injure and defraud. (The purport or substance of the note and endorsement may be set forth.
)Forgery. (Under Chap. 267, Sec. 1.
)—That A.
B.
, with intent to injure and defraud, did forge a certain instrument purporting to be, etc. (give the name of the instrument, description, tenor or substance as the pleader chooses).
Fornication. (Under Chap. 272, Sec. 18.
)—That A.
B.
, an unmarried person, did commit fornication with C.
D.
, an unmarried person.
Gaming. (Under Chap. 139, Sec. 15.
)—That A.
B.
, during the three months next before the finding of this indictment, at said (Boston), did keep and maintain a certain common nuisance, to wit, a tenement resorted to and used for illegal gaming.
House of ill fame. (Under Chap. 272, Sec. 24.
)—That A.
B.
, during the three months next before the finding of this indictment, did keep at said (Boston) a certain house of ill fame, resorted to for purposes of prostitution and lewdness.
House of ill fame—Nuisance. (Under Chap. 139, Sec. 15.
)—That A.
B.
, during the three months next before the finding of this indictment, at said (Boston), did keep and maintain a certain tenement used for prostitution, assignation and lewdness (or in which acts of prostitution, assignation and lewdness occurred), to the common nuisance of all the people.
Idle and disorderly person. (Under Chap. 272, Sec. 53.
)—That A.
B.
, during the three months next before the making of this complaint, was an idle and disorderly person, and neglected all lawful business and habitually misspent his time by frequenting houses of ill fame, gaming houses or tippling shops.
Incest. (Under Chap. 272, Sec. 17.
)—That A.
B.
, being the father of C.
D. (or state such relationship as will show the parties to be within the degree of consanguinity within which marriages are prohibited or declared by law to be incestuous and void), did have carnal knowledge of the body of said C.
D.
(A.
B. being married to another woman than said C.
D.
, if such be the fact, and it be desired to cover adultery.
)Larceny. (Under Chap. 266, Sec. 30.
)—(1) That A.
B. did steal one horse of the value of more (or less, as the case may be) than one hundred dollars, of the property of C.
D.
(2) That A.
B. did steal six cows, each of the value of twenty dollars, of the property of C.
D.
Larceny from a conveyance. (Under Chap. 266, Sec. 30.
)—That A.
B. did steal from a certain conveyance, to wit, the wagon of one C.
D.
, one book of the value, etc.
, of the property of C.
D.
, the said C.
D. being a common carrier (or a person carrying on the express business), and said conveyance being used by the said C.
D. in said business.
Larceny from realty. (Under Chap. 266, Sec. 44.
)—That A.
B.
, by a trespass, with intent to steal, did take and carry away from the realty, to wit, from the building of C.
D.
, in said (Boston), ten pounds of lead pipe, each of the value of (etc.
), of the property of C.
D.
, against his will, the said lead pipe being annexed to and a part of said building.
Larceny in building. (Under Chap. 266, Sec. 20.
)—That A.
B. did steal (one coat of the value of more than or less than ), of the property of X.
, in a certain building (or ship or vessel or railroad car) of the said X.
, situated in said (Boston).
Larceny of beast or bird. (Under Chap. 266, Sec. 46.
)—That A.
B. did steal a certain domesticated animal (or bird which was ordinarily kept in confinement), which was the property of C.
D.
Lewd and lascivious cohabitation. (Under Chap. 272, Sec. 16.
)—That A.
B. and C.
D.
, not being married to each other, did during one month next before the finding of this indictment (or such time as the evidence requires), lewdly and lasciviously associate and cohabit together.
Lewdness. (Under Chap. 272, Sec. 53.
)—That A.
B.
, during the three months next before the finding of this indictment, was a lewd, wanton and lascivious person in speech and behavior.
Lord’s Day. (Under Chap. 136, Sec. 5.
)—That A.
B.
, on the day of , in the year of our Lord one thousand, etc.
, that day being the Lord’s Day, did keep open his shop in said (Boston), for the purpose of doing business therein (or did labor or business or work), the same not being a work of necessity or charity.
Lottery. (Under Chap. 271, Sec. 7.
)—(1) That A.
B. did set up and promote a lottery for money.
(2) That A.
B. was concerned in the setting up (or managing or drawing) of a certain lottery for money.
(3) That A.
B. did dispose of a certain horse of the value of ten dollars to C.
D.
, by way of a lottery.
(4) That A.
B.
, under the pretext of the sale of certain property, to wit: (state the property) to C.
D.
, did dispose of to said C.
D. certain other personal property, to wit: (state the property), with intent of said A.
B. to make the said disposal of said (property) dependent upon a chance by lot, and that such chance was made an additional inducement to the disposal and sale of said (property).
Maiming, etc. (Under Chap. 265, Sec. 14.
)—That A.
B. did assault C.
D.
, and, with malicious intent to maim and disfigure said C.
D.
, did cut out his tongue.
Malicious injury. (Under Chap. 266, Sec. 127.
)—That A.
B. did wilfully and maliciously injure (or destroy) certain personal property (name it and allege value) of C.
D.
Malicious injury to real property. (Under Chap. 266, Sec. 104.
)—That A.
B. did wilfully (or maliciously) destroy (or deface or mar) a certain building of C.
D. in said (Boston).
Manslaughter. (Under Chap. 265, Sec. 13.
)—That A.
B. did assault and beat C.
D.
, and by such assault and beating did kill C.
D.
Manslaughter by negligence.
—That A.
B.
, being under the legal duty, and being of sufficient ability to provide C.
D.
, who was his spouse, with sufficient food and drink for sustenance and maintenance, did neglect and refuse so to do; by reason whereof said C.
D.
, being unable to provide sufficient food and drink, became and was mortally sick and died.
Murder. (Under Chap. 265, Sec. 1.
)—That A.
B. did assault and beat C.
D.
, with intent to murder him (by striking him over the head with an axe), and by such assault and beating did (kill and) murder C.
D. (and the jurors further say that the defendant is guilty of murder in the second degree and not in the first degree). This may be added if murder in the first degree is not alleged.
Neglect of Spouse or Minor Child. (Under Chap. 273, Sec. 1.
)—That A.
B.
, during the three months next before the making of this complaint, being of sufficient ability, did unreasonably neglect to provide for the support of C.
D.
, his lawful spouse (and E.
D.
, his minor child).
Obtaining signature by false pretences. (Under Chap. 266, Sec. 31.
)—That A.
B. designedly and with intent to defraud did falsely pretend to C.
D. that, etc.
, and by means of said false pretences, which said C.
D. believed and relied upon, did obtain the signature of said C.
D. to a certain written instrument, the false making whereof would be punishable as forgery, to wit, a certain promissory note (describe as in forgery); that the pretences so made to C.
D. were false and were known to be false by the said A.
B. at the time when he so made them.
Open and gross lewdness. (Under Chap. 272, Sec. 16.
)—That A.
B. was guilty of open and gross lewdness and lascivious behavior in the presence of C.
D.
Prostitute. (Under Chap. 272, Sec. 53.
)—That A.
B. was a prostitute, offering his or her body indiscriminately to others for hire.
Perjury. (Under Chap. 268, Sec. 1.
)—That in a proceeding in the course of justice before the (set forth the tribunal), on an issue within the jurisdiction of said court duly joined, and tried before a jury of the county between X. as plaintiff and Y. as defendant, A.
B. was lawfully sworn as a witness.
Whereupon it became and was material to said issue whether (say what), and to this the said A.
B. did wilfully and corruptly testify and say in substance and effect that (say what); all his said testimony as above set forth being false, as he well knew.
Polygamy. (Under Chap. 272, Sec. 15.
)—(1) That A.
B. unlawfully married C.
D.
, the said A.
B. having at the time he so unlawfully married a lawful spouse living other than said C.
D.
(2) That A.
B.
, having a lawful spouse living, to wit: X.
, did at (state place) unlawfully marry and have for his spouse one C.
D.
, after which the said A.
B. did, while said X.
, was still living, on, at, etc.
, unlawfully cohabit and continue to cohabit in (Boston) with the said C.
D.
Rape. (Under Chap. 265, Secs. 22(b), 23.
)—(1) That A.
B. did assault C.
D. with the intent to commit rape; and did commit rape upon said C.
D.
(2) That A.
B. did assault C.
D.
, a child under the age of sixteen years, with the intent to unlawfully have sexual intercourse or unnatural sexual intercourse with and abuse said C.
D.
; and did unlawfully have sexual intercourse or unnatural sexual intercourse with and abuse said C.
D.
Receiving stolen property. (Under Chap. 266, Sec. 60.
)—That A.
B.
, one watch of the value of dollars, the property of one C.
D.
, then lately before stolen, did buy, receive, and aid in the concealment of, the said A.
B. well knowing the said property to have been stolen as aforesaid.
Rescue. (Under Chap. 268, Sec. 15.
)—That A.
B. did forcibly rescue and take out of the lawful custody of E.
F. one C.
D.
, the said C.
D. being a prisoner arrested by and held in the lawful custody of E.
F.
, upon the charge of the crime of (larceny), the said E.
F. being a police officer of (said city), duly authorized to arrest and hold in custody the said C.
D. upon the charge aforesaid.
Robbery. (Under Chap. 265, Sec. 19.
)—That A.
B. did assault C.
D. with intent to rob him, and thereby did rob and steal from the person of said C.
D. (mention the property) of the property of said C.
D.
Sodomy, etc. (Under Chap. 272, Sec. 34.
)—That A.
B. did commit the abominable and detestable crime against nature with a (state the person or beast).
Stubborn child. (Under Chap. 272, Sec. 53.
)—That A.
B.
, a minor, during the three months next before the making of this complaint, was a stubborn child, and stubbornly refused to submit to the lawful and reasonable commands of C.
D.
, whose commands said A.
B. was bound to obey.
Threats to extort. (Under Chap. 265, Sec. 25.
)—That A.
B. did verbally (or by a written or printed communication) maliciously threaten one C.
D.
, to accuse him of the crime of (name it), with the intent thereby to extort money from the said C.
D.
Unlawful appropriation. (Under Chap. 266, Sec. 63.
)—That A.
B. did wilfully, mischievously and without right take, drive and use a certain horse, the property of one C.
D.
, without the consent of the said owner of said horse, or any person having the legal custody, care or control of the same.
Unnatural act. (Under Chap. 272, Sec. 35.
)—That A.
B. did commit an unnatural and lascivious act with one C.
D.
Uttering. (Under Chap. 267, Sec. 5.
)—That A.
B.
, with intent to injure and defraud, did utter and publish as true a certain forged instrument (describe as in forgery), well knowing the same to be forged.
Vagabond. (Under Chap. 272, Secs. 53, 68.
)—That A.
B.
, for three months next before the making of this complaint, was a vagabond, and wandered about from place to place, neglecting all lawful calling and employment, and not having any home or means of support.
Vagrant. (Under Chap. 272, Sec. 66.
)—That A.
B.
, during the three months next before the making of this complaint, was an idle person who, not having visible means of support, lived without lawful employment (and wandered abroad and visited tippling shops, and lodged in outhouses, and in the open air, and did not give a good account of himself, and wandered abroad and begged, and went about from door to door and placed himself in public places to beg and to receive alms).
The complaint may stop at the word “employment”, or such part of the matter in parentheses may be added as the case requires.
(Under Chapter 94, Sections 197-213.
)Common nuisance.
—That A.
B.
, during the three months next before the finding of this indictment, at said (Boston), did keep and maintain a certain tenement resorted to by habitual users of narcotic drugs for the purpose of using narcotic drugs.
Unlawful possession.
—That A.
B. did have in his possession unlawfully certain narcotic drugs, to wit, morphine (or cocaine or heroin or the name of the drug as it is commonly known).
Unlawful possession with intent to sell.
—That A.
B. did have in his possession, with intent unlawfully to sell and deliver, a certain narcotic drug (naming the drug).
Conspiracy.
—That A.
B. and C.
D. conspired together to engage in unlawful traffic in narcotic drugs.
Sale and delivery.
—That A.
B. did unlawfully sell (or give away or deliver) a narcotic drug, to wit, morphine (or name drug is commonly known by).
Unlawful prescribing and delivery, etc.
, by physician, etc.
—That A.
B.
, a physician (or pharmacist or dentist or veterinarian, etc.
), did unlawfully prescribe (or sell, give away, furnish or deliver) a certain narcotic drug, to wit, (naming it).
Possession of hypodermic instrument.
—That A.
B. did have in his possession unlawfully a hypodermic syringe and needle.
Sale and delivery of hypodermic instrument.
—That A.
B. did unlawfully sell (or deliver) a hypodermic syringe (or needle).
False making of prescription.
—That A.
B. did falsely make (or alter) a prescription for a narcotic drug.
Uttering a false prescription.
—That A.
B. did utter and publish as true a certain false prescription for a narcotic drug, well knowing the same to be falsely made (or altered).
Misrepresentation.
—That A.
B. did falsely represent to C.
D. (a physician, or dentist, veterinarian, pharmacist, etc.
), for the purpose of obtaining a narcotic drug, that (state the substance of the statements claimed to be representations).
Section 1. At each session of the superior court for criminal business, the district attorney, before trials begin, shall make and deposit with the clerk, for the inspection of parties, a list of all cases to be tried at that session, and the cases shall be tried in the order of such trial list, unless otherwise ordered by the court for cause shown. Cases may be added to such list by direction of the court, on its own motion or upon motion of the district attorney or of the defendant.
Section 10. If a crime is alleged to have been committed in the night time, night time shall be deemed the time between one hour after sunset on one day and one hour before sunrise on the next day; and the time of sunset and sunrise shall be ascertained according to mean time in the place where the crime was committed.
trial or finding of guilty of included offense Section 11. If a motion for a directed verdict of not guilty is denied and the case is submitted to the jury and a verdict of guilty is returned, the judge may on a renewed motion for a directed verdict of not guilty pursuant to the Massachusetts Rules of Criminal Procedure set aside the verdict and order a new trial, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint.
prior conviction Section 11A. If a defendant is charged with a crime for which more severe punishment is provided for second and subsequent offenses, and the complaint or indictment alleges that the offense charged is a second or subsequent offense, the defendant on arraignment shall be inquired of only for a plea of guilty or not guilty to the crime charged, and that portion of the indictment or complaint that charges, or refers to a charge that, said crime is a second or subsequent offense shall not be read in open court. If such defendant pleads not guilty and is tried before a jury, no part of the complaint or indictment which alleges that the crime charged is a second or subsequent offense shall be read or shown to the jury or referred to in any manner during the trial; provided, however, that if a defendant takes the witness stand to testify, nothing herein contained shall prevent the impeachment of his credibility by evidence of any prior conviction, subject to the provisions of section twenty-one of chapter two hundred and thirty-three. If a defendant pleads guilty or if there is a verdict or finding of guilty after trial, then before sentence is imposed, the defendant shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint or indictment alleging that the crime charged is a second or subsequent offense. If he pleads guilty thereto, sentence shall be imposed; if he pleads not guilty thereto, he shall be entitled to a trial by jury of the issue of conviction of a prior offense, subject to all of the provisions of law governing criminal trials. A defendant may waive trial by jury. The court may, in its discretion, either hold the jury which returned the verdict of guilty of the crime, the trial of which was just completed, or it may order the impanelling of a new jury to try the issue of conviction of one or more prior offenses. Upon the return of a verdict, after the separate trial of the issue of conviction of one or more prior offenses, the court shall impose the sentence appropriate to said verdict.
residue Section 12. If a person indicted for a felony is acquitted by the verdict of part of the crime charged, and is convicted of the residue, such verdict may be received and recorded by the court, and thereupon the defendant shall be adjudged guilty of the crime, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accordingly.
Section 14. No prisoner or person under recognizance, acquitted by verdict or discharged because no indictment has been found against him, or for want of prosecution, shall be liable for any costs or fees or for any charge for subsistence while he was in custody.
ordinances, etc. Section 15. In a prosecution before a district court under the by-laws, ordinances, orders, rules or regulations of a city or town, the city solicitor, town counsel or other person appointed to represent such city or town may enter a nolle prosequi or do anything relative to such prosecution which may be done by the district attorney.
institutions for reformation of juvenile offenders Section 16. The court may assign counsel to an inmate of any institution for the reformation of juvenile offenders who is to be tried for an offence alleged to have been committed therein; and shall, upon application, order the superintendent or other officer of such institution to produce at the trial such inmates thereof as, in the opinion of the counsel for the defence, certified in writing, or of the judge, in the absence of counsel, are material witnesses for the defence; and such officer shall obey the order and provide for the custody and safe return of such inmates.
involving minors under age of eighteen Section 16A. At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed, or at the trial of a complaint or indictment for getting a woman with child out of wedlock, or for the non-support of a child born out of wedlock, the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.
proceeding involving husband and wife Section 16B. The presiding justice of a district court may exclude the general public from the court room during the trial of any criminal proceeding involving husband and wife.
of incest or rape Section 16C. To protect the parties involved at a trial arising from a complaint or indictment for incest or rape, the trial judge may exclude all spectators from the courtroom in which such trial is being held, or from said courtroom during those portions of such trial when direct testimony is to be presented; provided, that either of the parties requests that all spectators be so excluded at the trial or portions thereof; and provided further, that the defendant in such trial by a written statement waives his right to a public trial for those portions from which spectators are so excluded.
transmission by simultaneous electronic means in certain cases Section 16D. (a) For the purposes of this section, the following words shall have the following meanings:—“Child witness”, a person who is under the age of fifteen years and who is alleged to have been a victim of, or a witness to an alleged violation of section thirteen B, thirteen F, thirteen H, twenty-two, twenty-two A, twenty-three, twenty-four or twenty-four B of chapter two hundred and sixty-five, or section two, three, four, four A, four B, five, six, seven, eight, twelve, thirteen, sixteen, seventeen, twenty-four, twenty-eight, twenty-nine, twenty-nine A, twenty-nine B, thirty-three, thirty-four or thirty-five A of chapter two hundred and seventy-two.
“Simultaneous electronic means”, Any device capable of projecting a live visual and aural transmission such as closed-circuit television.
(b)(1) At any time after the issuance of a complaint or indictment alleging an offense punished by any of the statutes listed herein, the court on its own motion or on motion of the proponent of a child witness, and after a hearing, may order the use of a suitable alternative procedure for taking the testimony of the child witness, in proceedings pursuant to said complaint or indictment, provided that the court finds by a preponderance of the evidence at the time of the order that the child witness is likely to suffer psychological or emotional trauma as a result of testifying in open court, as a result of testifying in the presence of the defendant, or as a result of both testifying in open court and testifying in the presence of the defendant. If the court orders the use of a suitable alternative for taking the testimony of a child witness pursuant to this section, the court shall make and enter specific findings upon the record describing with particularity the reasons for such order.
(2) An order issued under paragraph (1) shall provide that the testimony of the child witness be recorded on videotape or film to be shown in court at a later time or that the testimony be transmitted to the courtroom by simultaneous electronic means.
(3) Testimony taken by an alternative procedure pursuant to an order issued under paragraph (1) shall be taken in the presence of the judge, the prosecutor, defense counsel and such other persons as the court may allow. The defendant shall also have the right to be present unless the court’s order under paragraph (1) is based wholly or in part upon a finding that the child witness is likely to suffer trauma as a result of testifying in the presence of the defendant. If the order is based on such a finding, the testimony of the child witness shall not be taken in the presence of the defendant except as provided in paragraph (4).
(4) Testimony taken by an alternative procedure pursuant to an order issued under paragraph (1) shall be taken in a suitable setting outside the courtroom, except that an order based only on a finding that the child witness is likely to suffer trauma as a result of testifying in the presence of the defendant may provide that the testimony be taken in a suitable setting inside the courtroom in a manner so that the child witness is not able to see or hear the defendant.
(5) When testimony is taken by an alternative procedure pursuant to an order issued under paragraph (1), counsel shall be given the opportunity to examine or cross-examine the child witness to the same extent as would be permitted at trial, and the defendant shall be able to see and hear the child witness and to have constant private communication with defense counsel.
(6) The film, videotape or transmission of testimony taken by an alternative procedure pursuant to an order issued under paragraph (1) shall be admissible as substantive evidence to the same extent as and in lieu of live testimony by the child witness in any proceeding for which the order is issued or in any related criminal proceeding against the same defendant when consistent with the interests of justice, provided that such an order is entered or re-entered based on current findings at the time when or within a reasonable time before the film, videotape or transmission is offered into evidence. Subsequent testimony of a child witness in any such proceeding shall also be taken by a suitable alternative procedure pursuant to this section.
(7) Whenever pursuant to an order issued under paragraph (1), testimony is recorded on videotape or film or is transmitted to the courtroom by simultaneous electronic means, the court shall ensure that:(a) The recording or transmitting equipment is capable of making an accurate recording or transmission and is operated by a competent operator;(b) The recording or transmission is in color and the witness is visible at all times;(c) Every voice on the recording or transmission is audible and identified;(d) The courtroom is equipped with monitors which permit the jury and others present in the courtroom to see and hear the recording or transmission;(e) In the case of recorded testimony, the recording is accurate and has not been altered;(f) In the case of recorded testimony, each party is afforded the opportunity to view the recording before it is shown in the courtroom.
(8) Nothing in this section shall be deemed to prohibit the court from using other appropriate means, consistent with this section and other laws and with the defendant’s rights, to protect a child witness from trauma during a court proceeding.
children as victims or witnesses; continuance; impact statement Section 16F. In any criminal proceeding involving an alleged sex crime perpetrated upon a minor child, or in which a minor child is expected to testify as a witness to a sex crime, the court shall, in order to minimize stress on such child, take action to expedite trial and give precedence to the case over any other case; provided, however, that nothing in this section shall be construed to mean that trial shall be expedited if it is not in the best interests of the child.
When a motion or a request for a continuance is made the prosecutor shall file an impact statement which specifies whether the commonwealth agrees to the request for continuance, whether the child or the child’s representative agrees to such request, and the effect, if any, the granting of the continuance will have on the child. In ruling on any motion or request for continuance or other delay, the court shall consider and give weight to any possible adverse impact that a delay or continuance may have on the child. Prior to issuing an order on a motion for continuance or delay, the court shall make written findings of fact concerning the impact on the child of continuing or delaying the case.
requests for specific disposition; pretrial motions Section 18. A defendant who is before the Boston municipal court or a district court or a district court sitting in a juvenile session or a juvenile court on a criminal offense within the court’s final jurisdiction shall plead not guilty or guilty, or with the consent of the court, nolo contendere. Such plea of guilty shall be submitted by the defendant and acted upon by the court; provided, however, that a defendant with whom the commonwealth cannot reach agreement for a recommended disposition shall be allowed to tender a plea of guilty together with a request for a specific disposition. Such request may include any disposition or dispositional terms within the court’s jurisdiction, including, unless otherwise prohibited by law, a dispositional request that a guilty finding not be entered, but rather the case be continued without a finding to a specific date thereupon to be dismissed, such continuance conditioned upon compliance with specific terms and conditions or that the defendant be placed on probation pursuant to the provisions of section eighty-seven of chapter two hundred and seventy-six. If such a plea, with an agreed upon recommendation or with a dispositional request by the defendant, is tendered, the court shall inform the defendant that it will not impose a disposition that exceeds the terms of the agreed upon recommendation or the dispositional request by the defendant, whichever is applicable, without giving the defendant the right to withdraw the plea.
If a defendant, notwithstanding the requirements set forth hereinbefore, attempts to enter a plea or statement consisting of an admission of facts sufficient for finding of guilt, or some similar statement, such admission shall be deemed a tender of a plea of guilty for purposes of the procedures set forth in this section.
Any pretrial motion filed in a criminal case pending in the Boston municipal court or district court or a district court sitting in a juvenile session or a juvenile court and decided before entry of defendant’s decision on waiver of the right to jury trial shall not be refiled or reheard thereafter, except in the discretion of the court as substantial justice requires. Any such pretrial motion not filed or filed but not decided prior to entry of the defendant’s decision on waiver of the right to jury trial may be filed thereafter but not later than twenty-one days after entry of said decision on waiver of the right to jury trial, except for good cause shown.
Section 2. Issues of fact joined upon an indictment or complaint shall, in the superior court, be tried by a jury drawn and returned in the manner provided for the trial of issues of fact in civil causes, unless the person indicted or complained against elects to be tried by the court as provided by law.
admissible against him in criminal trial Section 23. At the trial of a criminal case in the superior court, upon indictment, or in a district court, the fact that the defendant did not testify at any preliminary hearing in the first court, or that at such hearing he waived examination or did not offer any evidence in his own defense, shall not be used as evidence against him, nor be referred to or commented upon by the prosecuting officer.
Section 28. A defendant aggrieved by a judgment of the district court or of the superior court in any criminal proceeding may appeal therefrom to the supreme judicial court.
of sentences Section 28A. There shall be an appellate division of the superior court for the review of sentences to the state prison imposed by final judgments in criminal cases, except in any case in which a different sentence could not have been imposed, and for the review of sentences to the reformatory for women for terms of more than five years imposed by final judgments in such criminal cases. Said appellate division shall consist of three justices of the superior court to be designated from time to time by the chief justice of said court and shall sit in Boston or at a Massachusetts correctional institution or at such other place as may be designated by the chief justice and at such times as he shall determine. No justice shall sit or act on an appeal from a sentence imposed by him. Two justices shall constitute a quorum to decide all matters before the appellate division.
A designation by the chief justice of the members of the appellate division shall be recorded by the clerk of the appellate division who shall forthwith send copies thereof to the several clerks of the superior court.
The clerk of the superior court for criminal business in Suffolk county shall be the clerk of the appellate division of the superior court. The first assistant clerk of superior court for criminal business in Suffolk county shall be the first assistant clerk of the appellate division of the superior court; the second assistant clerk of the superior court for criminal business in Suffolk county shall be the second assistant clerk of the appellate division of the superior court.
The clerk or an assistant clerk of the appellate division of the superior court shall attend all sittings of the appellate division wherever such sittings are held and shall record the proceedings thereof. The clerk shall have the care and custody of all records, books and papers which pertain to said appellate division. The clerk and the assistant clerks of the appellate division shall have all the power and authority of a clerk of courts in any county of the commonwealth in any and all matters pertaining to the appellate division or to any criminal case in which an appeal for a review of a sentence imposed in any county has been filed.
limit; stay of execution of sentence; jurisdiction; review of judgment, etc.
; disposition Section 28B. A person aggrieved by a sentence which may be reviewed may appeal to the appellate division for a review of such sentence. Upon the imposition of a sentence which may be reviewed, the clerk of the court shall notify the person sentenced of his right to appeal. The appeal shall be filed with the clerk of the court for the county where the judgment was rendered within ten days after the imposition of said sentence. An appeal shall not stay the execution of a sentence. The clerk of the court shall notify the chief justice, the justice who imposed the sentence and the clerk of the appellate division of the filing of an appeal. The justice who imposed the sentence appealed from may transmit to the appellate division a statement of his reasons for imposing the sentence and shall make such a statement within seven days if requested to do so by the appellate division.
The appellate division shall have jurisdiction to consider an appeal with or without a hearing, review the judgment so far as it relates to the sentence imposed and also any other sentence imposed when the sentence appealed from was imposed, notwithstanding the partial execution of any such sentence, and shall have jurisdiction to amend the judgment by ordering substituted therefor a different appropriate sentence or sentences or any other disposition of the case which could have been made at the time of the imposition of the sentence or sentences under review, but no sentence shall be increased without giving the defendant an opportunity to be heard. If the appellate division decides that the original sentence or sentences should stand, it shall dismiss the appeal. Its decision shall be final. The clerk of the appellate division shall forthwith notify the appellant, the superintendent of the correctional institution in which the appellant is confined, the clerk of the court in which judgment was rendered, the justice who imposed the sentence appealed from and the chief justice of the final action of the appellate division on an appeal. The appellate division may require the production of any records, documents, exhibits or other things connected with the proceedings. The superior court shall by rule establish forms for appeals hereunder and may by rule make such other regulations of procedure relative thereto, consistent with law, as justice may require.
disposition Section 28C. If the judgment is amended by an order substituting a different sentence or sentences or disposition of the case, the appellate division or any member thereof shall resentence the defendant or make any other disposition of the case in accordance with the order of said appellate division. Time served on a sentence appealed from shall be deemed to have been served on a substituted sentence.
clerks and clerical assistant of appellate division Section 28D. The clerk, the first assistant clerk and the second assistant clerk of the appellate division shall receive from the commonwealth as salary an amount equal to ten per cent of and in addition to the salaries established and paid to them as clerk, first assistant clerk and second assistant clerk respectively of the superior court for criminal business in the county of Suffolk.
An employee of the office of the clerk of the superior court for criminal business in the county of Suffolk shall be designated by the clerk as a clerical assistant in matters pertaining to the business of the appellate division. The clerical assistant, so designated, shall receive from the commonwealth as salary an amount equal to ten per cent of, and in addition to, the salary established and paid to said employee in the position held by said employee in the office of the clerk.
The clerk and the assistant clerks of the appellate division shall receive for travelling expenses necessarily incurred in the performance of their official duties such sum as shall be approved by a justice of the appellate division to be paid by the commonwealth. The clerk shall receive for office expenses necessarily incurred in the conduct of the business of the appellate division such sums as shall be approved by a justice of the appellate division to be paid by the commonwealth.
Section 28E. An appeal may be taken by and on behalf of the commonwealth by the attorney general or a district attorney from the district court to the appeals court in all criminal cases and in all delinquency cases from a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint, (2) allowing a motion to suppress evidence, or (3) denying a motion to transfer pursuant to section sixty-one of chapter one hundred and nineteen.
An appeal may be taken by and on behalf of the commonwealth by the attorney general or a district attorney from the superior court to the supreme judicial court in all criminal cases from a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure.
An application for an appeal from a decision, order or judgment of the superior court determining a motion to suppress evidence prior to trial may be filed in the supreme judicial court by a defendant or by and on behalf of the commonwealth by the attorney general or a district attorney. If such application is denied, or if such application is granted but the interlocutory appeal is heard by a single justice, the determination of the motion to suppress evidence shall be open to review by the full court after trial in the same manner and to the same extent as determinations of such motions not appealed under the interlocutory procedure herein authorized.
Rules of practice and procedure with respect to appeals authorized by this section shall be the same as those applicable to criminal appeals under the Massachusetts Rules of Appellate Procedure.
Section 29B. If a defendant having a right to counsel in a criminal proceeding has not been represented by counsel or has not properly waived his right to counsel and has entered a plea of guilty, such defendant may withdraw such plea as a matter of right at any time prior to imposition of sentence by the court.
or an admission to sufficient facts; motion to vacate Section 29D. The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.
” The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States.
If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization.
Section 33E. In a capital case as hereinafter defined the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. For the purpose of such review a capital case shall mean a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree. After the entry of the appeal in a capital case and until the filing of the rescript by the supreme judicial court motions for a new trial shall be presented to that court and shall be dealt with by the full court, which may itself hear and determine such motions or remit the same to the trial judge for hearing and determination. If any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court.
Section 34. No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless it affects the jurisdiction of the court.
Section 35. In all trials in district courts, male and female prisoners shall not be placed at the same time in the same dock, unless they are complained of jointly.
Section 4. The following oath shall be administered to the jurors for the trial of all criminal cases which are not capital:You shall well and truly try the issue between the commonwealth and the defendant, (or the defendants, as the case may be,) according to your evidence; so help you God.
The following oath shall be administered to the jurors for the trial of capital cases:You shall well and truly try, and true deliverance make, between the commonwealth and the prisoner at the bar, whom you shall have in charge, according to your evidence; so help you God.
Section 5. A juror who is conscientiously scrupulous of taking either of the oaths above prescribed shall be allowed to affirm.
involving motor vehicle theft or fraudulent claims; preservation of testimony Section 6A. At the arraignment of a defendant charged with violating the provisions of sections twenty-seven A, twenty-eight, twenty-nine, one hundred and eleven A and one hundred and thirty-nine of chapter two hundred and sixty-six, the court shall, upon a showing of need by the commonwealth, and after granting adequate time to defense counsel to consult with the defendant, allow testimony from the owner or person in control of such vehicle, solely on the issue of ownership and unauthorized use, and such testimony shall be taken and preserved and shall be admissible at trial.
In the prosecution of a person charged with violating the provisions of sections twenty-seven A, twenty-eight, twenty-eight A, twenty-nine, one hundred and eleven A and one hundred and thirty-nine of chapter two hundred and sixty-six, the court shall order, as a condition of granting a continuance, that the testimony of a witness then present in court be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right to cross-examination. The expenses of taking and preserving the testimony shall be assessed as costs against the party requesting the continuance.
as attorney at law Section 7. A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized.
Section 8. The defendant in a prosecution for writing or publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous, and the truth shall be a justification, unless actual malice is proved.
dwelling; defense Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
Section 9. In the prosecution of crimes which relate to or affect real or personal estate, it shall be sufficient, and shall not be a variance, if it is proved on the trial that, at the time when the crime was committed, either the actual or constructive possession or the general or special property in the whole or any part of such real or personal estate was in the person or community alleged to be the owner thereof.
probation; revocation of suspension; exceptions Section 1. When a person convicted before a court is sentenced to imprisonment, the court may direct that the execution of the sentence, or any part thereof, be suspended and that he be placed on probation for such time and on such terms and conditions as it shall fix. When a person so convicted is sentenced to pay a fine and to stand committed until it is paid, the court may direct that the execution of the sentence, or any part thereof, be suspended for such time as it shall fix and in its discretion that he be placed on probation on condition that he pay the fine within such time. If the fine does not exceed two hundred dollars and the court finds that the defendant is unable to pay it when imposed, the execution of the sentence shall be suspended and he may in its discretion be placed on probation, unless the court shall find that he will probably default, or that such suspension will be detrimental to the interests of the public. If he is committed for nonpayment of a fine, the order of commitment shall contain a recital of the findings of the court on which suspension is refused. The fine shall be paid in one payment, or in part payments, to the probation officer, and when fully paid the order of commitment shall be void. The probation officer shall give a receipt for every payment so made, shall keep a record of the same, shall pay the fine, or all sums received in part payment thereof, to the sheriff if such fine is imposed in the superior court, or to the clerk of the court if such fine is imposed in the district court, at the end of the period of probation or any extension thereof, and shall keep on file the sheriff’s or clerk’s receipt therefor. If during or at the end of said period the probation officer shall report that the fine is in whole or in part unpaid, and in his opinion the person is unwilling or unable to pay it, the court may either extend said period, place the case on file or revoke the suspension of the execution of the sentence. When such suspension is revoked, in a case where the fine has been paid in part, the defendant may be committed for default in payment of the balance.
The provisions of this section shall not permit the suspension of the execution of the sentence of a person convicted of a crime punishable by death or imprisonment for life. In granting probation under this section, the court shall include in its terms and conditions of probation that the person convicted shall pay any child support due under a support order, as defined in section 1A of chapter 119A, including payment toward any arrearage of support that accrues or has accrued or compliance with any payment plan between the person convicted and the IV-D agency as set forth in said chapter 119A.
When a person is sentenced by a court upon conviction of any crime, he shall be informed by the probation department on a form provided by the criminal history systems board that he will have a criminal record that may be accessible to the public under certain conditions, and of his rights pertaining thereto, as provided in sections one hundred and sixty-seven through one hundred and seventy-eight of chapter six.
Section 10. If a person has been convicted of a crime punishable, at the discretion of the court, by fine or imprisonment in the jail or house of correction or by fine or imprisonment in the state prison, the court may impose upon him a conditional sentence, and order him to pay a fine within a limited time which shall be expressed in the sentence, and in default thereof to suffer such imprisonment as is provided by law. He shall be forthwith committed to the custody of an officer in court or to the jail, to be detained until the sentence is complied with; and if he does not within the time limited pay the fine imposed, the sheriff shall cause the other part of the sentence to be executed forthwith.
when law prescribes both Section 11. Whoever is convicted of a crime, punishable by fine and imprisonment either in the jail or house of correction, except a person convicted under section thirty G of chapter one hundred and thirty-eight, may at the discretion of the court, be sentenced to be punished by imprisonment only, or by a fine only, if he shows to the satisfaction of the court that he has not before been convicted of a similar crime.
upon wife Section 12. Except as provided in section twenty-eight of chapter two hundred and eighteen and in section twenty of chapter two hundred and nineteen, if a husband is convicted of an assault upon his wife, the court may, in addition to the other penalties imposed, or in lieu thereof, order him to recognize with surety or sureties to keep the peace for any term of not more than two years, and may at any time revoke such order or reduce the amount required or order that the recognizance be taken without surety.
behavior Section 13. Except as provided in section twenty-eight of chapter two hundred and eighteen and in section twenty of chapter two hundred and nineteen, whoever is convicted of a misdemeanor may, in addition to the punishment prescribed by law, be required to recognize, with sufficient sureties, in a reasonable sum to keep the peace, or to be of good behavior, or both, for any term of not more than two years, and to stand committed until he so recognizes.
condition Section 14. Such recognizance shall be filed of record in the superior court for the county, and, upon a breach of the condition thereof, the proceedings shall be as provided in chapter two hundred and seventy-five relative to recognizances to keep the peace and be of good behavior.
county Section 15. Whoever is convicted of a crime, punishable by imprisonment in the jail or house of correction, may be sentenced to a jail or house of correction of any county, and the master or keeper shall receive and detain him in the same manner as if he had been sentenced by a court sitting in the county where such jail or house of correction is situated.
Correctional Institution, Framingham Section 16. A female, convicted of a crime punishable by imprisonment in a jail or house of correction, may be sentenced to the Massachusetts Correctional Institution, Framingham.
felony Section 19. The sentence to imprisonment of a female convicted of a felony shall be executed in the Massachusetts Correctional Institution, Framingham; or the court imposing sentence in such a case may impose the sentence in a jail or house of correction provided by law in the case of male prisoners, if it does not exceed two and one half years.
child support payments Section 1A. When a person convicted before a court is sentenced to fine and imprisonment, the court may direct that the execution of the sentence, or any part thereof, be suspended, and that he be placed on probation for such time and on such terms and conditions as it shall fix. The court may direct, as one of such terms and conditions, that payment of the fine may be made to the probation officer in one payment, or in part payments, during the period of probation or any extension thereof, and when such fine shall have been fully paid the order of commitment as to the fine shall be void, but the order of commitment as to imprisonment shall not be affected by such payment. The probation officer shall give a receipt for every payment so made, shall keep a record of the same, shall pay the fine, or all sums received in part payment thereof, to the clerk of the court at the end of the period of probation or any extension thereof, and shall keep on file the clerk’s receipt therefor. If during or at the end of said period the probation officer shall report that the fine is in whole or in part unpaid, and in his opinion the person is unwilling or unable to pay it, the court may either extend said period, place the case on file or revoke the suspension of the execution of the sentence. When such suspension is revoked, in a case where the fine has been paid in part, the defendant may be committed for default in payment of the balance, and may also be committed for the term of imprisonment fixed in the original sentence. This section shall not permit the suspension of the execution of the sentence of any person convicted of a crime punishable by imprisonment for life or of a crime an element of which is being armed with a dangerous weapon, or of any person convicted of any other felony if it shall appear that he has been previously convicted of any felony. In granting probation under this section, the court shall include in its terms and conditions of probation that the person convicted shall pay any child support due under a support order, as defined in section 1A of chapter 119A, including payment toward any arrearage of support that accrues or has accrued or compliance with any payment plan between the person convicted and the IV-D agency as set forth in said chapter 119A.
for clerk-magistrate and probation offices Section 1B. Notwithstanding any other provision of law, the administrative justice of a department of the trial court may direct that both the clerk-magistrate’s office and the probation office of one or more court divisions are to utilize a single funds collection and disbursement point within the courthouse.
to Massachusetts reformatory, etc. Section 2. In all cases the execution of orders of commitment to any training school or reformatory, however named, the department of youth services, or the department of public welfare may be suspended, and such suspension continued or revoked, in the same manner and with the same effect as the execution of sentences in criminal cases.
sentenced to confinement at hard labor Section 20. Subject to the preceding section, a sentence of a female convict of whatever age to confinement at hard labor shall be executed in a jail or house of correction or the Massachusetts Correctional Institution, Framingham as the court orders.
houses of correction Section 23. No sentence of a male convict to imprisonment or confinement for more than two and one half years shall be executed in any jail or house of correction.
Section 24. If a convict is sentenced to the state prison, except for life or as an habitual criminal, the court shall not fix the term of imprisonment, but shall fix a maximum and a minimum term for which he may be imprisoned. The maximum term shall not be longer than the longest term fixed by law for the punishment of the crime of which he has be convicted, and the minimum term shall be a term set by the court, except that, where an alternative sentence to a house of correction is permitted for the offense, a minimum state prison term may not be less than one year.
Section 25. Whoever has been twice convicted of crime and sentenced and committed to prison in this or another state, or once in this and once or more in another state, for terms of not less than three years each, and does not show that he has been pardoned for either crime on the ground that he was innocent, shall, upon conviction of a felony, be considered an habitual criminal and be punished by imprisonment in the state prison for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced.
Section 26. A convict under sentence of imprisonment in the state prison may be further sentenced for a maximum term not longer than the longest term fixed by law for the punishment of the crime for which he has been convicted, and a minimum term not less than one year.
of convict sentenced to jail or house of correction Section 27. If a convict serving a sentence of imprisonment in a jail or house of correction is convicted of a felony, the court may impose sentence of imprisonment in the state prison and order it to take effect forthwith, notwithstanding the former sentence. The convict shall thereupon be removed to the reception center established under section twenty of chapter one hundred and twenty-seven, and shall be discharged at the expiration of his sentence thereto.
notice of surrender; surrender hearing; warrant for arrest of persons already imprisoned; application for disposition; temporary custody Section 3. At any time before final disposition of the case of a person placed under probation supervision or in the custody or care of a probation officer, the probation officer may arrest him without a warrant and take him before the court, or the court may issue a warrant for his arrest. When taken before the court, it may, if he has not been sentenced, sentence him or make any other lawful disposition of the case, and if he has been sentenced, it may continue or revoke the suspension of the execution of his sentence; provided however, that in all cases where the probationer is served with notice of surrender and at least one of the underlying crimes for which he is on probation is a felony, then the probation officer shall provide a duplicate copy of the notice of surrender to the district attorney, and the court shall provide to the district attorney the opportunity to be heard and present evidence at the surrender hearing. If such suspension is revoked, the sentence shall be in full force and effect. If a warrant has been issued by the court for the arrest of such a person and he is a prisoner in any correctional institution, jail or house of correction, the commissioner of correction, the sheriff, master or keeper of said house of correction, or in Suffolk county, the penal institutions commissioner of the city of Boston, as the case may be, having such prisoner under his supervision or control, upon receiving notice of such warrant, shall notify such prisoner that he has the right to apply to the court for prompt disposition thereof. Such an application shall be in writing and given or sent by such prisoner to the commissioner of correction, or such sheriff, master, keeper, or penal institutions commissioner, who shall promptly forward it to the court from which the warrant issued, by certified mail, together with a certificate of said commissioner of correction, sheriff, master, keeper, or penal institutions commissioner, stating (a) the term of commitment under which such prisoner is being held, (b) the amount of time served, (c) the amount of time remaining to be served, (d) the amount of good time earned, (e) the time of parole eligibility of such prisoner, and (f) any decisions of the board of parole relating to such prisoner. Said commissioner of correction, sheriff, master, keeper, or penal institutions commissioner shall notify the appropriate district attorney by certified mail of such application to the court. Any such prisoner shall, within six months after such application is received by the court, be brought into court for sentencing or other lawful disposition of his case as hereinbefore provided.
In no case where a provision of this chapter provides for a finding, disposition or other order to be made by the court, or for a warrant to be issued, shall such be made or issued by any person other than a justice, special justice or other person exercising the powers of a magistrate.
Notwithstanding any restriction in the preceding paragraph, if a probation officer has probable cause to believe that a person placed under probation supervision or in the custody or care of a probation officer pursuant to sections 42A, 58A or 87 of chapter 276 or any other statute that allows the court to set conditions of release, has violated the conditions set by the court, the probation officer may arrest the probationer or may issue a warrant for the temporary custody of the probationer for a period not to exceed 72 hours or until the next sitting of the court, during which period the probation officer shall arrange for the appearance of the probationer before the court pursuant to the first paragraph of this section. Such warrant shall constitute sufficient authority to a probation officer and to the superintendent, jailer, or any other person in charge of any jail, house of correction, lockup, or place of detention to whom it is exhibited, to hold in temporary custody the probationer detained pursuant thereto.
state prison Section 30. If a convict sentenced by a court of the commonwealth or of the United States to imprisonment in the state prison or by a court of the United States to a federal penitentiary for a felony holds an office under the constitution or laws of the commonwealth at the time of sentence, it shall be vacated from the time of sentence. If the judgment against him is reversed upon writ of error, he shall be restored to his office with all its rights and emoluments; but, if pardoned, he shall not by reason thereof be restored, unless it is so expressly ordered by the terms of the pardon.
during trial Section 33A. The court on imposing a sentence of commitment to a correctional institution of the commonwealth, a house of correction, or a jail, shall order that the prisoner be deemed to have served a portion of said sentence, such portion to be the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial.
minutes of court of conviction and sentence; execution of sentence Section 34. When a convict is sentenced to pay a fine or to be imprisoned, the clerk of the court shall forthwith make out and deliver to the sheriff or to some officer in court a duly certified transcript from the minutes of the court of the conviction and sentence, which shall authorize the officer to execute such sentence, and he shall execute it accordingly. When such convict is sentenced to be imprisoned in a correctional institution of the commonwealth, except the Massachusetts Correctional Institution, Bridgewater and the Massachusetts Correctional Institution, Framingham, the officer authorized to execute such sentence shall deliver him to the reception center established in accordance with the provisions of section twenty of chapter one hundred and twenty-seven for examination and classification.
correctional institution Section 35. When a person is committed to any correctional institution of the commonwealth or to any other public penal institution, on conviction of felony, the clerk of the court shall, without charge, transmit with the mittimus an attested copy of the complaint or indictment under which such person was convicted and, if such complaint or indictment does not contain a reference to the chapter and section of the General Laws under which such person was convicted, a statement designating such chapter and section, and the names and addresses of the witnesses who testified for and against such person at the trial, together with a record containing the names and addresses of the presiding justice, district attorney and of the attorney for the defendant.
Section 36. Except for commitments under sections thirty-five or forty-eight of chapter one hundred and twenty-three, no person shall be sentenced to the state farm except for drunkenness. Whoever is sentenced to the state farm for drunkenness may be there held in custody for not more than six months.
for commitment Section 37. Every warrant for the commitment of a person sentenced by a district court shall set forth the statutory name, if any, of the crime of which the person was convicted, and shall contain a citation of the statute, if any, under which the complaint was drawn.
warrant of commitment Section 38. A sheriff, deputy sheriff or constable, when engaged in the execution of a warrant for the commitment of a person to a penal institution which is not in his own county, shall have the same powers in any county through which he may pass as he would have in his own county in the performance of a similar duty.
Section 39. The officer serving the precept in a criminal case shall, without charging travel therefor, return it with his doings and fees endorsed thereon to the court or magistrate issuing it, who shall tax, allow and certify the fees as a part of the expenses in the case. In case of commitment, the officer shall leave with the superintendent, jailer or keeper of the prison an attested copy of the precept, with his return thereon, which shall authorize the detention of the person committed.
Section 3A. Not later than seven days after a plea of guilty or after a verdict of guilty and in any event before adjournment of the sitting at which such plea or verdict has been taken and recorded in a case of felony wherein no question of law has been reported for decision by the supreme judicial court, the district attorney shall move for sentence; provided, that nothing herein shall preclude the district attorney from again making such a motion in any case where the imposition of sentence is delayed under section forty-seven.
Section 4. Sentence shall be imposed upon conviction of a crime, regardless of whether an appeal has been taken, except as otherwise provided in section sixty-one in case of a conviction of a capital crime.
If sentence is imposed upon conviction of a crime punishable by death, the justice imposing the sentence shall at the same time stay the execution of the sentence, such stay to be effective until revoked by the superior court department of the trial court, which is hereby granted full powers of revocation in the premises. The clerk of such court shall, forthwith upon the revocation by the court of any such stay of execution of sentence, certify that said stay has been revoked and cause said certificate to be served upon the superintendent of the state prison, or the officer performing his duties, by any officer qualified to serve criminal process; and the officer serving the same shall forthwith make due return of service to the clerk.
Section 40. If a convict imprisoned under sentence is again sentenced to confinement in a prison other than that in which he is then held, the warrant for his commitment in pursuance of the second sentence shall be placed in the hands of the superintendent or keeper of the prison where the convict is held, and said superintendent or keeper, upon the expiration of the first sentence, shall commit the convict in obedience to said warrant.
Section 41. If a corporation, after being duly served with process, fails to appear and answer to an indictment or complaint brought against it under the laws of the commonwealth, its default shall be recorded, the charges in the indictment or complaint taken to be true, and judgment rendered accordingly.
or assessment Section 42. If judgment is rendered against a corporation upon an indictment or complaint under the laws of the commonwealth, the court may issue a warrant of distress to compel payment of the penalty or assessment, as the case may be, as prescribed by law, together with interest thereon if so ordered by the court.
If the records of the registrar of motor vehicles indicate that a corporation has failed to pay an assessment for a civil motor vehicle infraction as provided in section three of chapter ninety C, the registrar may issue a warrant of distress to compel payment of the assessment, plus any late fees or other administrative fees which the registrar is required or authorized by law or regulation to impose, unless such fees are waived in whole or in part by the registrar.
or written statements Section 4B. Before disposition in any case where a defendant has been found guilty of any felony or any crime against the person or crime where physical injury to a person results, excluding any crime for which a sentence of death may be imposed, and which involves an identified victim whose whereabouts are known, the district attorney shall give the victim actual notice of the time and place of sentencing and of the victim’s right to make a statement to the court, orally or in writing at the victim’s option, as to the impact of the crime and as to a recommended sentence. Before disposition, the court shall allow any victim who elects to make such an oral statement the opportunity to do so in the presence of the defendant. Before disposition, the district attorney shall file any such written statement with the court and shall make it available to the defendant.
If the victim is unable to make an oral or written statement because of his mental, emotional, or physical incapacity or his age, his attorney or a designated family member shall be provided the notice and the opportunity to make a statement prescribed in this paragraph.
Before said disposition the office of the district attorney shall cause to be prepared a written statement as to the impact of the crime on the victim, which shall be filed with the court as part of the presentence report and made available to the defendant. The statement shall include the following: (1) the name of the victim; (2) documentation of the net financial loss, if any, suffered by the victim or a family member as a result of the crime; (3) in cases where the crime has had an impact on the victim’s personal welfare or family relationship or has had a psychological impact on the victim or his family, a statement of such impact.
The court shall allow the defendant to have the opportunity to rebut the victim’s oral or written statement and the district attorney’s written statement if the court decides to rely upon such statements or parts thereof in imposing sentence.
No sentence shall be invalidated because of failure to comply with the provisions of this section. This section shall not be construed to create any cause of action or any right of appeal on behalf of any person.
Section 5. If no punishment for a crime is provided by statute, the court shall impose such sentence, according to the nature of the crime, as conforms to the common usage and practice in the commonwealth. If a person is convicted of a misdemeanor punishable by imprisonment, he may, unless otherwise expressly provided, be sentenced to imprisonment either in the jail or in the house of correction.
stay; warrant of conviction; execution of sentence; certified copy of record to governor Section 57. Immediately upon the pronouncing of the sentence of death upon a person convicted of a capital crime, and immediately upon the revocation under section four of the stay of execution of such a sentence, the clerk shall make, sign and deliver to the sheriff of the county where the conviction is had a warrant under the seal of the court stating the conviction and sentence, and that a stay of execution of the sentence has been granted under section four, and that such stay has been revoked under said section, and shall at the same time transmit to the superintendent of the state prison a certified copy of the warrant. Such warrant shall be directed to said superintendent commanding him to cause execution to be done in accordance with the provisions of such sentence. The clerk of the court shall, upon revocation under section four of the stay of execution of the sentence, make out and deliver to the governor a certified copy of the whole record of the conviction and sentence, including any rescripts from the supreme judicial court.
examination; transfer or failure to transfer to general prison population; appeal; hearing; annual record review; court order Section 58. The sheriff of the county in a jail whereof a prisoner sentenced to the punishment of death is confined, or a deputy designated by the sheriff, within ten days after receipt by the sheriff of the warrant for the execution of such sentence shall, at a time chosen by the sheriff, convey such prisoner to the state prison and deliver him, with the warrant in either case, to the superintendent thereof or to the officer performing his duties and such prisoner shall be placed in a cell provided for the purpose. Within fourteen days thereafter, the superintendent or officer performing his duties shall cause said prisoner to be examined by a psychiatrist for the purpose of rendering a written and signed opinion as to whether or not said prisoner is psychologically fit to be transferred from special confinement to confinement with the general prison population, and in the case of a female, to the general prison population at the reformatory for women, with full participation in the educational and work programs, within the prison, afforded prisoners under sentence other than the punishment of death. Upon receipt of said psychiatric opinion, and other pertinent information, the superintendent or officer performing his duties may transfer said prisoner to confinement with the general prison population with the right of full participation in the privileges afforded other prisoners as aforesaid. If the superintendent, or officer performing his duties, does not so transfer said prisoner, he shall notify said prisoner of his decision forthwith, whereupon said prisoner may appeal said decision within ten days of said notification by giving notice to the superintendent, or officer performing his duties, on a form provided him at the time of the receipt of the notification of the adverse decision. Upon receipt of such notice, the superintendent or officer performing his duties shall notify the commissioner of correction forthwith whereupon the commissioner shall hold a hearing on said appeal within fifteen days of receipt of notice that such appeal has been made. The commissioner or his appointee shall conduct said hearing and shall render a decision granting or denying said appeal within five days following the date of the hearing. A prisoner who is denied such transfer by the superintendent, or officer performing his duties, shall remain in a cell for the purpose of the execution of his sentence, and shall thereafter be kept therein, unless an appeal made by him of the adverse decision is granted, until the sentence of death is executed upon him, and no person shall be allowed access to him without an order of the court, except the officers and employees of the prison, his counsel, such physicians, priest, or minister of religion as the superintendent may approve and members of the prisoner’s family who are identified to the satisfaction of the superintendent. Any prisoner confined to a cell for the purpose of the execution of his sentence shall have his record reviewed annually for the purpose of determining whether or not said prisoner should be placed in the general population, and shall be entitled to a hearing, as provided above, on each adverse decision.
Notwithstanding the foregoing, the superior court may make any order relative to the custody of a prisoner confined in the state prison or the reformatory for women under this section in case said prisoner is granted a new trial.
Section 59. The sentence of death shall be executed by the superintendent of the state prison, or by a person acting under his direction, not earlier than twenty days nor later than thirty days after service upon said superintendent, or officer performing his duties, of a certificate of the clerk of the court that the stay of the execution of the sentence has been revoked under section four, unless the governor pardons the crime, commutes the punishment therefor or respites the execution or said execution is otherwise delayed by process of law. If the execution is respited or stayed by process of law, the sentence of death shall be executed within the week beginning on the day next after the day on which the term of respite or stay expires. The sentence of death shall be executed upon such day within the limits of time provided in this section as the superintendent elects; but no previous announcement thereof shall be made, except to such persons as may be permitted to be present in accordance with section sixty-five.
Section 6. Whoever is convicted of a crime punishable wholly or in part by imprisonment in jail may be sentenced to such imprisonment in the house of correction or to confinement at hard labor either in the jail or house of correction; and if convicted of a crime punishable by imprisonment in the house of correction may be sentenced to such imprisonment in a jail.
Section 60. The punishment of death shall be inflicted by causing a current of electricity of sufficient intensity to cause death to pass through the body of the prisoner, the application of said current to be continuous until he is dead or, at the election of the prisoner, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such prisoner is dead. The sentence shall be executed within an enclosure or building for that purpose at the state prison and the company which furnishes the electric power or light to the state prison shall provide all necessary electricity for executions by electrocution at such times as the superintendent orders.
sentence; insane and pregnant persons Section 61. If a person convicted of a capital crime is, at the time when sentence is to be imposed, found by the court to be insane, it may cause such person to be removed to one of the state hospitals for such term and under such limitations as it may order. If a person convicted of a capital crime is, at the time when sentence is to be imposed, found by the court to be pregnant, the court shall not pass sentence upon her until it finds that she is no longer pregnant.
or pregnancy of prisoner; psychiatric examination and written certification Section 62. After examination by two psychiatrists designated by the commissioner of mental health, if it appears that a prisoner under sentence of death has become insane, the governor, with the advice and consent of the council, may, from time to time for a stated period, respite the execution of said sentence until it appears to their satisfaction that the prisoner is no longer insane. Upon such respite, the governor may order the removal of such prisoner to the hospital at the Massachusetts Correctional Institution, Bridgewater. Within ten days prior to the termination date of said respite, the medical director of said hospital shall have the said prisoner examined by two psychiatrists designated by the commissioner of mental health. If, after said examination, the said medical director is of the opinion that the prisoner is no longer insane, he shall so certify to the superintendent of the state prison, accompanied by a written statement regarding the mental condition of said prisoner. The superintendent shall thereupon cause the prisoner to be reconveyed to the state prison and to be kept there pursuant to the sentence of the court, and shall notify the governor of the return of said prisoner, and of his mental condition. If, however, in the opinion of the said medical director of said hospital the said prisoner is still insane, he shall so certify to the governor, accompanied by a written statement regarding the mental condition of the prisoner. Thereupon, the governor, with the advice and consent of the council, may further respite the execution of the sentence from time to time for a stated period, until it is determined that the prisoner is no longer insane, as herein provided.
If it appears to the satisfaction of the governor and council that a prisoner under sentence of death is pregnant, the governor, with the advice and consent of the council, shall from time to time respite the execution of said sentence for stated periods until it appears to their satisfaction that she is no longer pregnant.
consideration of pardon Section 63. The governor, with the advice and consent of the council, may from time to time respite the execution of a sentence of death for stated periods so long as he may consider it necessary to afford him, with the advice and consent of the council, an opportunity to investigate and consider the facts of the case for the purpose of considering whether or not to pardon the prisoner.
final determination of judicial questions Section 64. The execution of a sentence of death may be stayed from time to time for stated periods by the supreme judicial court, or a justice thereof, pending the final determination of any judicial question arising in or out of the case in which the sentence is imposed.
Section 65. There shall be present at the execution of the sentence of death, in addition to the superintendent, deputy and such officers of the state prison as the superintendent deems necessary, the commissioner of correction or his representative, the person performing the execution under the direction of the superintendent, if any, and the following physicians: the prison physician, the state surgeon, and a medical examiner for Norfolk county, or if any or all are unable to be present, such physicians as the superintendent approves. The physicians present shall be the legal witnesses of the execution. There may also be present, upon the request of the prisoner who is to be executed, the immediate members of the family of the prisoner. There may also be present, upon the request of said prisoner, a priest, minister, or other representative of religion. There may also be present the sheriff of the county where the prisoner was convicted, or his deputy, and, with the approval of the superintendent, not more than three other persons.
examination Section 66. There shall be a post mortem examination by a medical examiner for Norfolk county of the body of every prisoner executed in conformity with the sentence of a court.
to clerk of court after execution Section 67. When the superintendent has executed the sentence of death upon a prisoner in obedience to a warrant from the court, he shall forthwith make return thereof under his hand, with the doings thereon, to the office of the clerk of said court.
presentence hearing upon conviction for consideration of death penalty; consideration by jury of aggravating and mitigating circumstances; determination by jury; sentence by court; validity of conviction Section 68. In all cases in which a sentence of death may be imposed, the court shall submit to the jury special questions concerning the issue of murder in the first degree. If the jury determines beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the jury shall specify whether the defendant is guilty of murder with deliberate premeditation, murder with extreme atrocity or cruelty, or murder in the commission or attempted commission of a crime punishable by imprisonment for life, or two or more of these. Upon a verdict of guilty of murder in the first degree with deliberate premeditation, or murder in the first degree with extreme atrocity or cruelty, a presentence hearing shall be conducted, unless the commonwealth stipulates that none of the aggravating circumstances as defined in paragraph (a) of section sixty-nine exists, before the jury before which the case was tried; provided, however, that if in the opinion of the judge presiding at the presentence hearing, it is impossible or impracticable for the trial jury to sit at the presentence hearing, a new jury shall be impanelled to sit at the presentence hearing. The selection of that jury shall be according to the laws and rules governing the selection of a jury for the trial of a capital case. During the presentence hearing, the only issue shall be the determination of the punishment to be imposed. During such hearing the jury shall hear all additional relevant evidence presented by either the commonwealth or defendant in mitigation of punishment regardless of its admissibility under the rules governing the admission of evidence at criminal trials. During such hearing, the jury shall also hear such evidence in aggravation of punishment as is relevant to the statutory aggravating circumstance or statutory aggravating circumstances as defined in said paragraph (a) of said section sixty-nine; provided, however, that only such evidence in aggravation of punishment as the commonwealth has made known to the defendant prior to his trial shall be admissible, and provided further, that said evidence is otherwise admissible according to the rules governing the admission of evidence at criminal trials. The jury shall also hear arguments by the defendant or his counsel or both and by the commonwealth regarding the punishment to be imposed. The commonwealth and the defendant or his counsel shall be allowed to make opening statements and closing arguments at the presentence hearing. The order of those statements and arguments and the order of presentation of evidence shall be the same as at trial. Upon the conclusion of evidence and arguments at the presentence hearing, the court shall instruct the jury orally and shall provide to the jury in writing the statutory aggravating circumstance or statutory aggravating circumstances as determined by the court to be warranted by the evidence, and also any and all statutory mitigating circumstance or statutory mitigating circumstances for its deliberation. The judge shall also instruct the jury to consider any other relevant mitigating circumstance or mitigating circumstances. The judge shall also instruct the jury that they may not find that the penalty of death shall be imposed unless they shall first make a unanimous determination of the existence of one or more statutory aggravating circumstances beyond a reasonable doubt, and make a unanimous determination that the statutory aggravating circumstance or statutory aggravating circumstances outweigh the statutory or other mitigating circumstance or statutory or other mitigating circumstances beyond a reasonable doubt.
The jury shall then retire to determine whether any statutory aggravating circumstance or statutory aggravating circumstances, as defined by said paragraph (a) of said section sixty-nine or any mitigating circumstance or mitigating circumstances, including but not limited to those defined by paragraph (b) of said section sixty-nine, exist. The jury shall further determine whether the statutory aggravating circumstance or statutory aggravating circumstances it finds to exist outweigh the statutory or other mitigating circumstance or statutory or other mitigating circumstances it finds to exist. The jury shall be instructed that: (1) it may choose to find that the penalty of death shall be imposed upon the defendant or (2) it may choose not to find that the penalty of death shall be imposed upon the defendant. The jury, if its unanimous verdict is to impose the penalty of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstance or statutory aggravating circumstances which it unanimously found existed beyond a reasonable doubt, and that the statutory aggravating circumstance or statutory aggravating circumstances it so unanimously found outweighed any statutory mitigating circumstance or other mitigating circumstance or statutory mitigating circumstances or other mitigating circumstances beyond a reasonable doubt. The process of weighing the statutory aggravating circumstance or statutory aggravating circumstances and statutory mitigating circumstance or statutory mitigating circumstances or other mitigating circumstance or other mitigating circumstances to determine the sentence, shall not be a mere tallying of statutory aggravating circumstance or statutory aggravating circumstances and statutory or other mitigating circumstance or statutory or other mitigating circumstances for the purpose of numerical comparison. Instead, it shall be a process by which the statutory aggravating circumstance or statutory aggravating circumstances and statutory mitigating circumstance or other mitigating circumstance or statutory mitigating circumstances or other mitigating circumstances relevant to sentence are considered for the purpose of determining whether the sentence, in view of all the relevant circumstances in an individual case, shall be life imprisonment without parole, or death.
After the jury has made its findings, the court shall set a sentence in accordance with section seventy.
The declaration of a mistrial during the course of the presentence hearing or any error in the presentence hearing determined on final appeal or otherwise shall not affect the validity of the conviction.
death penalty cases Section 69. (a) In all cases in which the death penalty may be authorized, the statutory aggravating circumstances are:(1) the murder was committed on a victim who was killed while serving in the performance of his official duties as one or more of the following: police officer, special police officer, state or federal law enforcement officer, firefighter, officer or employee of the department of correction, officer or employee of a sheriff’s department, officer or employee of a jail or officer or employee of a house of correction;(2) the murder was committed by a defendant who was at the time incarcerated in a jail, house of correction, prison, state prison or a correctional or penal institution or a facility used for the housing or treatment or housing and treatment of prisoners;(3) the murder was committed on a victim who was killed while engaged in the performance of his official duties as a judge, prosecuting attorney, juror, or witness;(4) the murder was committed by a defendant who had previously been convicted of murder in the first degree, or of an offense in any other federal, state or territorial jurisdiction of the United States which is the same as or necessarily includes the elements of the offense of murder in the first degree;(5) the murder was committed by the defendant pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder;(6) the murder was committed by the defendant for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant or another, or the murder was committed by the defendant for the purpose of effectuating an escape or attempting to effectuate an escape of the defendant or another from custody in a place of lawful confinement;(7) the murder involved torture to the victim or the intentional infliction of extreme pain prior to death demonstrating a total disregard to the suffering of the victim;(8) the murder was committed as part of a course of conduct involving the killing of or causing serious bodily injury to or the attempted killing of or the attempted causing of serious bodily injury to more than one person by the defendant;(9) the murder was committed by means of a destructive device, bomb, or explosive planted, hidden, mailed, delivered, or concealed in any place, area, dwelling, building, or structure by the defendant or the murder was committed by means such that the defendant knew or reasonably should have known that his act or acts would create a grave risk of death or serious bodily injury to more than one person; or(10) the murder was committed by the defendant and occurred during the commission or attempted commission or flight after committing or flight after attempting to commit aggravated rape, rape, rape of a child, indecent assault and battery on a child under fourteen, assault with intent to rape, assault on a child under sixteen years of age with intent to rape, kidnapping for ransom, kidnapping, armed robbery, unarmed robbery, breaking and entering with intent to commit a felony, armed assault in a dwelling, arson, confining or putting in fear or otherwise harming another for the purpose of stealing from depositories, or the murder occurred while the defendant was in possession of a sawed-off shotgun or a machine gun.
(b) In all cases in which the death penalty may be authorized, the mitigating circumstances shall be any factors proffered by the defendant or the commonwealth which are relevant in determining whether to impose a sentence less than death, including, but not limited to, any aspect of the defendant’s character, propensities, or record and any of the circumstances of the murder, including but not limited to the following:(1) the defendant has no significant history of prior criminal convictions;(2) the victim was a participant in the defendant’s conduct or had consented to it;(3) the murder was committed while the defendant was under extreme duress or under the domination or control of another;(4) the offense was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of a mental disease or defect, organic brain damage, emotional illness brought on by stress or prescribed medication, intoxication, or legal or illegal drug use by the defendant which was insufficient to establish a defense to the murder but which substantially affected his judgment;(5) the defendant was over the age of seventy-five at the time of the murder, or any other relevant consideration regarding the age of the defendant at the time of the murder;(6) the defendant was battered or otherwise physically, sexually, or mentally abused by the victim in connection with or immediately prior to the murder for which the defendant was convicted;(7) the defendant was experiencing post-traumatic stress syndrome caused by military service during a declared or undeclared war.
offenders; revocation or rescission of special sentence; subsequent crimes Section 6A. When a person is sentenced on a first offense to imprisonment in a jail or house of correction for a term which does not exceed one year, the court may order the sentence to be served in whole or in part on weekends and legal holidays or such other periodic interval as the court may determine. Such a sentence shall be known as a special sentence of imprisonment. If an offender receives a special sentence of imprisonment under this section, he shall, unless otherwise provided by the sentence of the court, report to the institution to which he has been sentenced no later than 6:00 p.
m. on Friday and shall be released at 7:00 a.
m. on the succeeding Monday; provided, however, that if the succeeding Monday is a holiday, the offender shall not be released until 7:00 a.
m. on Tuesday; and provided further, that the total time served shall be equal to the sentence imposed.
On application of the offender, of the department of correction or the director of the institution to which the offender is committed, or on its own motion, the court may after a hearing rescind or modify an order under the first paragraph, and may direct that the balance of the sentence of imprisonment shall be served consecutively. Before a special sentence is rescinded or modified, the court shall cause the notification thereof to be given to the district attorney and to the offender.
If while serving such a special sentence, such person is convicted of a subsequent crime other than a nonmoving motor vehicle violation, the terms of said special sentence shall be rescinded and said person shall complete the balance of his original sentence consecutively in the jail or house of correction in which he has been serving said special sentence.
non-payment of fine Section 7. Whoever is convicted of a crime punishable by a fine, and is liable to imprisonment in the jail for its non-payment, may be sentenced to such imprisonment in the house of correction, or to confinement at hard labor either in the jail or house of correction.
Section 70. Where, upon a trial by jury, a person is convicted of a crime which is punishable by death, a sentence of death shall not be imposed unless findings in accordance with section sixty-eight are made. Where such findings are made and the jury finds that the death penalty shall be imposed, the court shall sentence the defendant to death. Where such findings are not made or not unanimously made or where a sentence of death is not a unanimous finding by the jury, the court shall sentence the defendant to life imprisonment as provided in section two of chapter two hundred and sixty-five.
affirmation Section 71. In addition to review of the entire case pursuant to section thirty-three E of chapter two hundred and seventy-eight, the supreme judicial court shall review the sentence of death imposed pursuant to sections sixty-eight, sixty-nine and seventy of chapter two hundred and seventy-nine. If the supreme judicial court determines that (1) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor or (2) the evidence does not support the jury’s finding of a statutory aggravating circumstance or statutory aggravating circumstances as defined in section sixty-nine or (3) the evidence does not support the jury’s finding that the statutory aggravating circumstance or statutory aggravating circumstances defined in section sixty-nine outweigh the statutory or other mitigating circumstance or statutory or other mitigating circumstances or (4) the sentence of death is excessive or disproportionate to the penalty imposed in other similar cases of one or more jurisdictions legally authorized to impose said penalty of death, with the greater weight of such comparison to be given to similar Massachusetts cases in which the death penalty will have been imposed, with due consideration of both those cases in which a sentence of life imprisonment was imposed and those cases in which a sentence of death was imposed, or in the event that the court determines any or all of the four factors as enumerated in this section exist, the court shall (1) reverse the sentence of death and remand for a new presentence hearing pursuant to section sixty-eight of chapter two hundred and seventy-nine, or (2) reverse the sentence of death and remand to the superior court department of the trial court for sentence of imprisonment in the state prison for life. The court shall also have the authority to affirm the sentence of death.
Section 8. A convict upon whom two or more sentences to imprisonment are imposed may be fully committed upon all such sentences at the same time, and shall serve them in the order named in the mittimuses upon which he is committed; but when fine and imprisonment are named in one of the sentences the prisoner shall always be committed upon the term sentence first.
sentence; “from and after” sentence Section 8A. For the purpose only of determining the time of the taking effect of a sentence which is ordered to take effect from and after the expiration of a previous sentence, such previous sentence shall be deemed to have expired when a prisoner serving such previous sentence shall have been released therefrom by parole or otherwise. Nothing in this section shall be construed to alter or control any provision of section one hundred and thirty-one or one hundred and forty-nine of chapter one hundred and twenty-seven.
recognizance; consecutive sentence Section 8B. If a defendant on release subject to the provisions of section fifty-eight of chapter two hundred and seventy-six, commits a crime, the sentence imposed for such a crime shall run consecutively to the earlier sentence for the crime for which he was on release.
Section 9. Except as provided in section one hundred and forty-six of chapter one hundred and twenty-seven, if a convict is sentenced to pay a fine in more than one case and has been committed to a jail, house of correction or other prison or other correctional institution for refusing to pay such fine, the subsequent sentence shall take effect upon the expiration of the imprisonment under the former sentence.
Section 1. Fines and forfeitures exacted as punishments for offences or violation or neglect of any duty imposed by statute may, unless otherwise provided, be prosecuted for and recovered by indictment or complaint or by an action of tort in the name of the commonwealth in a court having jurisdiction of the offence or action.
certificate Section 10. The state treasurer shall pay to the persons entitled therein all witnesses fees or other money due for services rendered or expenses incurred in any of the courts named in section eight, or for any of the aforesaid officers, upon presentation to him of a certificate stating the name of the claimant, of the court and of the case, the nature of the services rendered or expenses incurred and the amount due therefor, signed by the clerk of the court or by the officer for whom the service was rendered.
to commonwealth Section 11. Except as otherwise provided in section eighty of chapter two hundred and seventy-six, fines and forfeitures imposed in criminal prosecutions by the superior court to the use of the commonwealth, and all amounts found to be due on forfeited recognizances, shall under the direction of the court, be certified by the clerk and paid to the commonwealth.
fines or forfeitures of prisoner Section 12. A sheriff who, having a person in his custody by virtue of the sentence of a court, voluntarily or negligently suffers him to escape shall be held to have received the fines, forfeitures or forfeited recognizances described in the preceding section, at the time of the escape, and shall be liable for the same, with interest and costs, as if he had received them.
of escaped prisoner; remedy Section 13. If a sheriff neglects to make such payment for thirty days, the state treasurer shall recover of him in contract the amount of such fines, forfeitures and forfeited recognizances, with interest at the rate of twelve per cent from the time he is held to have received the same and costs.
house of correction; payment to jailer or superintendent Section 14. A person committed to a jail or house of correction in default of payment of a fine may pay it to the keeper of the jail or superintendent of the house of correction, and the warrant for his commitment shall designate the town where the offence for which the fine was imposed was committed and the uses to which such fine is payable by the officer receiving it.
payments received by jailer or superintendent; account on oath Section 15. Every keeper of a jail and superintendent of a house of correction shall, on the first days of January, April, July and October, pay over to the state treasurer all money received by him under the preceding section during the preceding three months, and render to said state treasurer an account, on oath, showing the names of prisoners by whom payments have been so made, the court by which each was committed and the amount received from each.
time limit for demand; qualifications for payment to clerks of district court Section 16. The state treasurer shall pay over to the persons entitled thereto all amounts allowed to them for expenses or fees in criminal prosecutions, or allowed by the courts as rewards or compensations to prosecutors, which have been duly certified by the clerks, if demanded within three years after the allowance thereof; but he shall pay no such amounts to a clerk of a district court, until the clerk has rendered a written account of all fines received by him since his last return, and of all fees which have remained in his hands for one year after their allowance.
apportionment among beneficiaries Section 2. A fine or forfeiture imposed by a court shall, except as otherwise provided, be paid over to the state treasurer. Twenty per cent of the fines imposed under the provisions of chapter three hundred and fifty-four of the acts of nineteen hundred and fifty-two shall be paid over to the state treasurer. If the whole or any part of a fine is by law payable to a complainant or informant or to a person or corporation as beneficiary, the court may apportion the fine or forfeiture between such complainant, informant or other beneficiary and the commonwealth, respectively.
Fines imposed under the provisions of chapters eighty-nine and ninety, including fines, penalties and assessments imposed under the provisions of chapter ninety C for the violation of the provisions of chapters eighty-nine and ninety, fines assessed by a hearing officer of a city or town as defined in sections twenty A and twenty A 1/2 of chapter ninety and forfeitures imposed under the provisions of section one hundred and forty-one of chapter one hundred and forty, shall be paid over to the treasury of the city or town wherein the offense was committed; provided, however, that only fifty per cent of the amount of fines, penalties and assessments collected for violations of section seventeen of chapter ninety or of a special speed regulation lawfully made under the authority of section eighteen of said chapter ninety shall be paid over to the treasury of the city or town wherein the offense was committed and the remaining fifty per cent shall be paid over to the state treasurer and credited to the Highway Fund.
counsel Section 3. In proceedings in the name of the commonwealth for the recovery of fines, forfeitures or penalties, the whole or any part of which do not enure to the benefit of the commonwealth, the court may, upon motion of the district attorney, appoint an attorney to conduct the cause under his direction; but such attorney so appointed shall have no right to control the cause or receive compensation from the commonwealth.
commonwealth; waiver of costs for indigent defendants Section 4. Expenses arising in a criminal prosecution, including fees of grand and traverse jurors for travel and attendance therein, shall be paid by the commonwealth.
Fees and costs of indigent defendants in criminal prosecutions except attorneys’ fees, shall or may be waived or substituted by the court or paid by the commonwealth in accordance with the provisions of sections twenty-seven A to twenty-seven G, inclusive, of chapter two hundred and sixty-one.
Section 5. In a criminal case in which questions of law are carried to the supreme judicial court, the attorney general or district attorney may have necessary copies of the brief for the commonwealth printed, and the expense thereof shall be paid in the same manner as other expenses in the case.
prosecution Section 6. Costs shall not be imposed by a justice as a penalty for a crime. A justice may, as a condition of the dismissal or placing on file of a complaint or indictment, or as a term of probation, order the defendant to pay the reasonable and actual expenses of the prosecution. A justice may impose reasonable costs as a result of a default by a criminal defendant that was intentional or negligent and without good cause.
Section 6A. Before imposing a fine or forfeiture as a punishment or part punishment for a crime, the court or justice shall levy as a special cost assessment an amount equal to twenty-five per cent of the fine or forfeiture; provided however, that no special cost assessment shall be levied on fines or forfeitures for minor motor vehicle offenses, and juvenile offenses or acts of delinquency. Minor motor vehicle offenses shall be defined as those not punishable by incarceration.
When a fine is suspended, in whole or in part, the special cost assessment shall be computed on the fine remaining to be paid. In any case where a person convicted of any offense to which this section applies is imprisoned until the fine is satisfied, the court or justice may in his discretion waive all or any part of said cost assessment the payment of which would work a hardship on the person convicted or his immediate family.
Said cost assessment shall be accounted for by the clerk of the court and forwarded to the state treasurer who shall deposit such assessment in the General Fund.
Section 6B. The court shall impose an assessment of not less than thirty-five dollars nor more than one hundred dollars against any person who has attained the age of seventeen years and who is convicted of a misdemeanor or against whom a finding of sufficient facts for a conviction is made on a complaint charging a misdemeanor under sections thirty-two C, thirty-two D, and thirty-two G and thirty-five of chapter ninety-four C. The court shall impose an assessment of not less than one hundred and fifty dollars nor more than five hundred dollars against any person who is convicted of a felony or against whom a finding of sufficient facts for a conviction is made on a complaint charging a felony under sections thirty-two, thirty-two A, thirty-two B, thirty-two E, thirty-two F and thirty-four of chapter ninety-four C. When multiple criminal offenses arising from a single incident are charged, the total assessment shall not exceed five hundred dollars. In the discretion of the court, any assessment imposed pursuant to this section which would cause the person against whom the assessment is made an undue hardship may be reduced or waived.
All such assessments made shall be collected by the court and shall be transmitted monthly to the state treasurer. The assessment from any conviction which is subsequently overturned on appeal shall be refunded by the court to the person whose conviction is overturned. Said court shall deduct such funds from the assessments transmitted to the state treasurer. Assessments pursuant to this section shall be in addition to any other fines or restitution imposed in any disposition.
Section 6C. Any assessment imposed pursuant to section six B shall be deposited in the Drug Analysis Fund established by section fifty-one of chapter ten. The proceeds of the fund shall be made available, subject to appropriation, to the department of public health for services provided to analyse samples used in the prosecution of controlled substances.
treasurer Section 7. At the end of every sitting of the superior court for the transaction of criminal business, the clerk shall make and deliver to the state treasurer certificates of all fines imposed by the court, to the use of the commonwealth or to the treasurer of a city or town under the provisions of section two of this chapter.
Section 8. The clerk of the superior court for the transaction of criminal business for Suffolk county, the clerks of the municipal courts in Boston, the sheriff, superintendent of the house of correction or other officer, except those named in the following section, upon receiving fines, fees or other money in any criminal proceedings, payable to the commonwealth or to a city or town shall, before the tenth day of every month, pay over to the state treasurer and account, on oath, for all fines, fees or other money so received during the preceding calendar month, and make the detailed statements required by law.
of courts in Suffolk county Section 9. The clerks of all courts in Suffolk county, except those named in the preceding section, who are required to account to the commonwealth shall, on or before the tenth day of each month, pay over to the state treasurer and account, on oath, for all fines, fees and other money received by them in any criminal proceedings during the preceding calendar month remaining after the payments therefrom allowed by law.
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