who would not be likely to convict the prisoner. But the prosecuting officers were reluctant to challenge them peremptorily, as the law giving authority to do so was apparently about to be repealed; and, after answering the statute questions, they were allowed to serve. That jury, throughout their deliberations on their verdict, stood ten for conviction to two for acquittal; the two for acquittal being the same who had been pointed out in advance as not likely to convict. At the third trial, the jury at the outset of their deliberations stood ten for conviction to two for acquittal, and shortly thereafter eleven

The dissenting juror declared that he did not believe testimony which all his associates considered trustworthy. Under these circumstances, the guilt of the prisoner appears to be so probable, that I am not willing to consent to his discharge. The court are in possession of the facts, and to their decision I shall cheerfully bow. But if the prisoner is not discharged, and if there shall appear to be a prospect of obtaining a fair jury, the prosecuting officers will not shrink from the labor of a fourth trial, nor despair even yet of obtaining a just conviction."

The court thought it their duty to discharge the prisoner upon his own recognizance; partly, as I understood, because there appeared to be no probability that, upon another trial, a jury could be empanelled who would agree upon a verdict of guilty.

In this case, there is no doubt in my mind that a murderer escaped conviction; and, as there appeared to be no reason, at either trial, why a fair jury should not convict, and as in point of fact there was reason to believe that all the fair jurors at each trial were in favor of a conviction, the question presents itself whether there is any defect in the laws, in consequence of which the conviction of a murderer in Suffolk County may be impossible or difficult. It seems to me that there is; and I respectfully recommend a change in two respects. 1. That the statutes may be so altered that in cities there shall be greater care and more immediate responsibility in determining upon the names to go into the jury-box. At one of the trials of McAvena, about one quarter of the jurors summoned were either disqualified or legally exempt from jury duty. A system

and should also leave upon some small body in cities, as there now is upon the selectmen of towns, a personal responsibility for the character of the persons selected, would improve the administration of justice, both in criminal and civil cases. 2. That the right of challenging jurors may be restored to the prosecuting officers. In my annual report for last year, I submitted to the legislature my own opinion that the statute then in force, St. 1867, c. 254, authorizing the Commonwealth to challenge two jurors peremptorily in criminal causes, was a wise one and should be retained. It was, however, repealed. On the 15th day of May, 1867, in reply to a letter of inquiry received from His Excellency Governor Bullock, I addressed to him an official communication, showing that the prosecuting officers had a right of peremptory challenge of jurors in criminal causes, under the laws of twenty-seven states of this Union, and also in the courts of the United States under an act of congress; and that in England, under a practice which has long prevailed, and is firmly established, the prosecuting officers, by setting aside jurors when the list is first called, have a virtual right of challenge which is practically unlimited. Since that time, the Maine statute of 1867, c. 108, has been published, giving there a right of peremptory challenge to the public prosecutors; and the same authority exists in the territories of Nebraska, Colorado, Dakotah, Idaho, and Washington. The only states and territory in which this right does not now exist by statute, so far as I am aware, are Vermont, Massachusetts, New Jersey, Virginia, West Virginia, South Carolina, Florida, Minnesota, and Utah. In South Carolina, and perhaps in others of these states, a practice prevails like that in England.

The experience of the past year has confirmed me in the opinion that, especially in states where there is a considerable transient population, so that there is less opportunity for those who revise the jury lists to ascertain the personal characters of the citizens, it is quite essential that the right of peremptory challenge on the part of the prosecutors should exist. The statute of the United States of 1865, c. 86, § 2, gives to the government the right to challenge five jurors peremptorily in cases of treason, and two in other cases. I respectfully recommend that the Commonwealth be authorized to challenge five jurors peremptorily in all criminal causes in

which the punishment may be as severe as imprisonment for life, and two in all other criminal causes.

I also respectfully recommend, (repeating in substance my recommendation of last year,) that a statute may be passed providing that indictments for murder, when found, shall at once, if the person accused is in custody, or if not, then immediately after his arrest, be transmitted to and entered in the supreme judicial court for the county, at any time, either in term time or vacation; and that the clerk of the supreme judicial court for the county shall thereupon send notice thereof to the chief or first justice of that court, and to the attorney general, with a copy of the indictment; and that a time may thereupon be appointed by said justice or any other justice of said court, for the arraignment of the prisoner upon the indictment, which time may be either in term time or vacation; and that the proceedings upon his arraignment, and all other proceedings in the case, may be as now provided by law. The increased number of indictments to be tried or otherwise disposed of renders it quite desirable that some change in the statutes should be made, giving greater power of fixing convenient times for bringing the cases before the court.

I also respectfully recommend the passage of a statute, similar to the existing English statute, to the effect that facts proving embezzlement shall be no defence to an indictment for larceny, and facts proving larceny shall be no defence to an indictment for embezzlement. The chief distinction between the two offences consists in the relation which the thief sustains to the owner of the goods. If it is a peculiar kind of fiduciary relation, the offence is embezzlement; otherwise it is larceny. The facts may appear slightly different upon different trials; or different juries may find differently upon the same testimony. In Commonwealth v. O'Malley, 97 Mass. 585, the defendant was indicted for embezzlement, and escaped on the ground that the facts as proved showed him to be guilty of larceny. He had before been indicted for larceny, and acquitted on the ground that the facts as proved showed him to be guilty of embezzlement. In my opinion, there is no constitutional objection to a statute which will make such a result hereafter

Various other matters have from time to time been brought to my attention, in respect to which the criminal jurisprudence and the proper and economical administration of the criminal law may be susceptible of improvement; but I am not now prepared formally to recommend any further specific changes.

The most important civil business of this office, pending in the courts, which has been brought to a conclusion within the past year, was the tax cases argued in the supreme court of the United States in February, in which it was established that the taxes upon savings banks and manufacturing companies are valid, and that no abatement from them need be made on account of United States bonds which these corporations may hold. If our statutes had been declared illegal, the legislature would doubtless have been called upon to refund taxes to the amount of nearly $600,000, which in that event would have been deemed to have been illegally collected by the Commonwealth on account of United States bonds held by these corporations.

The amount of money collected in this office for the Commonwealth, during the past year, has been $140,277.06; all of which has been accounted for to the treasurer.

The amount expended for the contingent expenses of civil actions in which the Commonwealth is a party or has an interest has been $298.49.

I append a condensed statement of the substance of certain official opinions given by me heretofore, which may properly be made public at this time, in order that it may be known what construction has been put upon the constitutional and statutory provisions under consideration.

I have the honor to be,

Very respectfully,

Your obedient servant,

CHARLES ALLEN.

ABSTRACTS OF OFFICIAL OPINIONS.

CONSTABLE OF THE COMMONWEALTH.

The provision in St. 1868, c. 338, that no member of the state police shall be entitled to receive witness fees, was intended as a general provision, and does not expire with the year 1868.

CRIMINAL JURISDICTION.

It is the duty of police officers of the city of Boston, and also of the constable of the Commonwealth and his deputies, to prevent crime and preserve order upon the cross-dam, in like manner as in other portions of the city.

ELECTIONS.

When the governor and council, in pursuance of their duty, have examined the returns of votes for an officer, and arrived at a result, and the governor has issued his summons to such person as appears to be chosen, and in the presence of five councillors has made and subscribed a certificate of such result, and delivered the same, with the returns, to the secretary of the Commonwealth, they have discharged the entire duty devolving upon them, in this respect, and cannot properly grant a new hearing, or make a new examination of the returns, unless for the purpose of correcting some mistake made by themselves.

The St. of 1863, c. 144, § 3, providing that if, within sixty days of an election, any person who received votes for any office shall notify the clerk of any city that he claims an election to such office, the clerk shall retain the ballots cast at the election "subject to the order of the body to which such person shall claim to have been elected," cannot be taken literally; but must be construed to mean, "subject to the order of the body to which such person shall present, for their decision, his claim of an election," or "subject to the order of the body