
    Commonwealth vs. John Harvey.
    A record of proceedings upon a criminal complaint which sets forth that the defendant on his arraignment was “ asked by the court whether he guilty or not guilty of the offence charged upon him; ” sufficiently shows that the defendant was asked to plead to the charge.
    Complaint on the St. of 1869, c. 415, to the municipal court of the city of Boston, against the claimant in the case next preceding this, for keeping intoxicating liquors for unlawful sale. By the record certified to the superior court on appeal, it was set forth that in the municipal court the complaint was in open court read to the defendant and he was “ asked by the court whether he guilty or not guilty of the offence charged upon him,” “ and the said Harvey refuses to plead to said complaint, and it is ordered by the court that a plea of not guilty be entered for said Harvey, who thereof puts himself on trial,” &e., and was found guilty and appealed. Thereupon, in the superior court the defendant filed a motion to quash the proceedings on six grounds, the fifth of which was, “ that it does not appear from the record of the court below, where the complaint was made, that the defendant was asked to plead to the charge or offence in said complaint set forth, or that he was required to plead by said court below, or that he had any opportunity so to do, or that he did plead in said court;” and by consent of the defendant and the attorney for the Commonwealth the questions of law arising on this motion were reported by Scudder, J., before verdict, for the determination of this court.
    
      G. F. Donnelly, for the defendant.
    
      
      J. C. Davis, Assistant Attorney General, (G. Allen, Attorney General, with him,) for the Commonwealth.
   Wells, J.

The first four grounds for the motion to quash are waived upon the argument here. The fifth ground is based upon a clerical omission of the word “ is,” which does not leave the meaning of the record in doubt. It clearly appears that the defendant was asked whether guilty or not guilty; that he refused to plead; that the court ordered the plea of “ not guilty ” entered for him; and that upon that plea he was tried and convicted. The sixth ground is disposed of in the case of Commonwealth v. Intoxicating Liquors, ante, 448.

Motion to quash overruled.  