Commonwealth v. Cahill, 94 Mass. 540

Commonwealth v. Cahill

94 Mass. 540 | Mass. | 1866

Foster, J.

The attorney general has conceded that the rule stated in the defendant’s prayer for instructions is applicable to *541indictments for larceny. Where several articles, all of one kind, are described, their value may be alleged in the aggregate or collectively, and the defendant may be convicted of stealing a part only, of less value than the whole. Commonwealth v. O’ Connell, ante, 451. But where articles of different kinds are alleged to have been stolen, and only the collective value of the whole is averred, there can be no conviction upon proof of stealing either description of property alone. If not guilty of the larceny of each class of articles, the defendant must be acquitted altogether; because otherwise it does not appear with the certainty required in criminal pleading that the property which the verdict finds he took had any value. Hope v. Commonwealth, 9 Met. 134.

The applicability of the same rule to indictments for robbery is shown by the very definition of that crime, which is only an aggravated species of larceny, “ a felonious taking of property from the person of another by force.” Donolly's case, 2 East P. C. 725. The value of the property taken is immaterial, but by the very terms of our statute, as well as at common law, it must be “ money or other property which may be the subject of larceny.” Gen. Sts. c. 160, § 24. And the indictment, in addition to alleging that the felonious taking was by violence or putting in fear, must contain the averments necessary in indictments for other larcenies. Commonwealth v. Clifford, 8 Cush. 215.

Under the allegation of value in the present case, upon the evidence the defendant was entitled to an acquittal.

Exceptions sustained.