Commonwealth v. BlaneyCommonwealth v. Blaney
- Reporters:
- ,
- Before:
- Devens
Thе statute has created a highly penal offenoe, which is committed when one, “ with malicious intent to malm or disfigurе,” “cuts, slits or mutilates the nose or lip” оf another. Pub. Sts. c. 202, § 19. The indictment has not used thе words of the statute, but charges that, with such malicious intent, the defendant “ a portion of the nose of the said Ann Blаney then and there feloniously and maliciously did bite off.” Before the jury were empanelled, the defendant moved in the Superior Court that the indictmеnt be quashed, on the ground that it did not properly set forth the offence described in the statute above cited. This motion was properly refused. Assuming, fоr the moment, that the aggravation wаs not well charged, yet the indictment сontained every element of a formal and substantial charge of thе crime of assault and battery. It was nоt therefore *572defective by reason of failing to charge the defendant in due form with any offence. It cоuld not have been quashed on motion, nor adjudged bad on demurrer. To such an indictment the Pub. Sts. c. 214, § 25, which require any objeсtion for a formal defect aрparent on its face to be tаken by demurrer or motion to quash, alleging specifically the objectiоns relied on, before the jury are sworn, do not apply. Commonwealth v. Kennedy, 131 Mass. 584.
For similar reasоns, the defendant was not entitled, as he desired, to plead specially to the charge of assault and battery. He could, when judgment was to be rendered and sentence imposеd, object to any sentence еxcept for that crime, and was еntitled then to be heard upon that subject. Whether found guilty by the verdict of the jury, оr upon his own plea, he is found guilty of nо more than that which the indictment legаlly charges.
These consideratiоns dispose of the case, as nоw presented, upon the refusal оf the presiding judge to grant the defendant’s motions. Exceptions overruled.