NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12067

COMMONWEALTH vs. JAMES C. HARDIN.

December 6, 2016.

Breaking and Entering. Larceny. Practice, Criminal, Complaint, 

Dismissal, Appeal by Commonwealth. Jurisdiction, Felony.

In a four-count complaint, James C. Hardin was charged with 

(1) malicious destruction of property having a value over $250, 

(2) breaking and entering a motor vehicle in the daytime with 

intent to commit a felony, (3) larceny of property having a 

value of $250 or less, and (4) possession of a class B 

controlled substance. A judge in the Boston Municipal Court 

accepted Hardin's guilty plea as to counts 1 and 4, charging

malicious destruction and drug possession, and dismissed counts 

2 and 3, charging breaking and entering and larceny, for lack of 

probable cause. The Commonwealth appealed. In a divided 

opinion, the Appeals Court reversed the dismissal of these 

counts. Commonwealth v. Hardin, 88 Mass. App. Ct. 681 (2015). 

We allowed Hardin's application for further appellate review. 

We agree that these counts of the complaint should be 

reinstated, but on grounds different from those relied on by the 

Appeals Court.

As he did before the Appeals Court, Hardin concedes that 

probable cause existed to support the two counts at issue. He 

argues, however, that the dismissal should be affirmed on 

alternative grounds. See, e.g., Commonwealth v. Va Meng Joe, 

425 Mass. 99, 102 (1997) ("[a]n appellate court is free to 

affirm a ruling on grounds different from those relied on by the 

[plea] judge if the correct or preferred basis for affirmance is 

supported by the record"). Specifically, Hardin argues that the 

challenged counts of the complaint failed to allege a cognizable 

criminal act and that the breaking and entering count failed to 
2

allege an essential element of the offense, namely, that Hardin 

broke and entered into the motor vehicle of another person. 

Instead, the complaint alleges that he "did . . . break and 

enter a . . . motor vehicle . . . , the property of Known to 

Commonwealth."

1 Hardin's argument that the complaint fails to 

state a crime raises an issue of subject matter jurisdiction, 

which may be raised at any time, Commonwealth v. Cantres, 405 

Mass. 238, 239-240 (1989), and which cannot be waived. 

Commonwealth v. Canty, 466 Mass. 535, 547 (2013), citing 

Commonwealth v. Palladino, 358 Mass. 28, 31 (1970). It is the 

court's duty to consider a challenge to its jurisdiction 

whenever it is raised, and even to consider such an issue on its 

own motion.2 See Commonwealth v. Andler, 247 Mass. 580, 582 

(1924), and cases cited (dismissing complaint sua sponte after 

conviction, where "the complaint set[] forth no crime known to 

the law . . . . No court has jurisdiction to sentence a 

defendant for that which is not a crime").

The complaint was adequate to charge Hardin with each 

offense and to establish jurisdiction in the Boston Municipal 

Court. "[A] complaint shall contain a caption as provided by 

law, together with a plain, concise description of the act which 

constitutes the crime or an appropriate legal term descriptive 

thereof." Mass. R. Crim. P. 4 (a), 378 Mass. 849 (1979). A 

charging instrument must "provide a defendant with fair notice 

of the crime with which he is charged." Canty, supra at 547, 

citing Commonwealth v. Dixon, 458 Mass. 446, 456 (2010). "A 

 

1 The larceny count similarly alleges that Hardin "did steal 

the property of Known to Commonwealth." Hardin concedes that 

this is adequate to allege that the property belonged to another 

person, as implied by the term "steal." See Commonwealth v. 

Hardin, 88 Mass. App. Ct. 681, 684 (2015) (Rubin, J., dissenting 

in part and concurring in part).

2 In this regard, we observe that the malicious destruction 

count, to which Hardin pleaded guilty, also alleges that Hardin 

destroyed the property of "Known to Commonwealth." If such 

language rendered the breaking and entering count 

jurisdictionally defective, the malicious destruction count 

would suffer from the same defect. See G. L. c. 266, § 127 

("Whoever destroys or injures the personal property, dwelling 

house or building of another . . . " [emphasis added]). 

Hardin's guilty plea does not waive any jurisdictional defect. 

See, e.g., Commonwealth v. Canty, 466 Mass. 535, 546-547, 548 

(2013); Commonwealth v. Wilson, 72 Mass. App. Ct. 416 (2008) 

(dismissing complaint ten years after guilty plea).
3

complaint or indictment will not be dismissed . . . 'if the 

offense is charged with sufficient clarity to show a violation 

of law and to permit the defendant to know the nature of the 

accusation against him.'" Canty, supra, quoting Commonwealth v. 

Fernandes, 430 Mass. 517, 519-520 (1999), cert. denied sub nom. 

Martinez v. Massachusetts, 530 U.S. 1281 (2000). See G. L. 

c. 277, § 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 that might be 

obtained by requiring a bill of particulars").3 Read in a 

reasonable, commonsense manner, counts 2 and 3 meet these 

standards by alleging in plain language that Hardin broke and 

entered a motor vehicle with intent to commit a felony and that 

he stole property.4 Each count also refers to the statute Hardin 

allegedly violated, providing further notice of the nature of 

the charges against him. Moreover, no reasonable person would 

understand count 2 as alleging that Hardin broke and entered his 

 

3 Although G. L. c. 277, § 34, refers only to an 

"indictment," we treat it and like statutes as applying equally 

to a complaint. See Canty, 466 Mass. at 547, quoting 

Commonwealth v. Fernandes, 430 Mass. 517, 519-520 (1999), cert. 

denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000)

("A complaint or indictment will not be dismissed . . . 'if the 

offense is charged with sufficient clarity to show a violation 

of law and to permit the defendant to know the nature of the 

accusation against him'" [emphasis added]). Cf. Commonwealth v. 

Palladino, 358 Mass. 28, 30 n.2 (1970) ("While [G. L. c. 277, 

§ 17 (since repealed by St. 1979, c. 344, § 33)], speaks of an 

'indictment[,]' it has been treated as applying equally to a 

complaint").

4 The complaint does not specify either the property that 

was stolen or broken into or the owner of the property. See 

G. L. c. 277, § 25 ("If an indictment for a crime involving the 

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"). The Commonwealth 

urges that the complaint is nonetheless sufficient "to identify 

the act" and thus is in compliance with § 25. We need not 

resolve this issue. In the circumstances of this case, any lack 

of specificity does not warrant dismissal, as it could be cured 

by means of a bill of particulars. G. L. c. 277, § 34. See 

Canty, 466 Mass. at 548.
4

own property. There is no basis to dismiss the complaint for

lack of jurisdiction.

Commonwealth v. Wilson, 72 Mass. App. Ct. 416 (2008), is 

not to the contrary. In that case, the complaint charged that 

the defendant "did, by means of a dangerous weapon, MOTOR 

VEHICLE, assault and beat COMM OF MASS [sic], in violation of 

G. L. c. 265, § 15A." Id. at 416. The complaint was defective 

because the crime of assault and battery, as a crime against the 

person, requires a human victim. Id. at 417. The Commonwealth 

of Massachusetts is not capable of being the victim of an 

assault and battery. The complaint in Wilson did not state a 

crime, as "[t]here is no crime of assault and battery upon the 

Commonwealth of Massachusetts." Id. at 418. Here, in contrast,

the offenses in question are crimes against property. G. L. 

c. 266, §§ 18 and 30. Any property owner, human or otherwise, 

is capable of being the victim of such an offense. Each count 

of the complaint, while awkward, is adequate to allege that the 

victim of each offense was a property owner whose identity is 

known to the Commonwealth.5

The order dismissing counts 2 and 3 of the complaint is 

reversed, and the matter is remanded to the Boston Municipal 

Court for further proceedings consistent with this opinion.

So ordered.

Timothy St. Lawrence for the defendant.

Zachary Hillman, Assistant District Attorney, for the 

Commonwealth.

 

5 Although we conclude that the complaint was adequate in 

this case, the "Known to Commonwealth" language has 

unfortunately resulted in doubt and confusion. We trust that,

going forward, the Commonwealth will use more straightforward 

language in its complaints, for example, by using the alleged 

victim's name or a phrase such as "another person."