Commonwealth v. Crowley

167 Mass. 434 | Mass. | 1897

Allen, J.

1. The motion to quash was rightly overruled. The indictment contains a valid charge of assault and battery. As an indictment under Pub. Sts. c. 202, § 26, it need not aver the ownership of the goods intended to be stolen; see Commonwealth v. Moore, 130 Mass. 45 ; and in other respects an indictment substantially similar, though open to criticism, was held sufficient, in Commonwealth v. Holmes, 165 Mass. 457.

2. The witness Lord, having testified that the defendant Crowley struck him, there was no valid objection to the questions, “ How do you know it was Crowley that struck you ? ” and “ What was Crowley doing when you turned around? ” This objection appears to have been founded upon the language of the court in Commonwealth v. Phillips, 162 Mass. 504; but in that case the witness had nob named the defendant.

3. The evidence as to the property said to have been stolen was competent, upon the charge of the offence under Pub. Sts. c. 202, § 26.

4. The verdict of the jury was properly received and recorded. The purpose of directing the jury to put in writing the result which they had agreed upon was to enable the court to see that their verdict as orally announced conformed to what they had agreed upon before their separation. In their writing the jury did not use the word “ count ” in its technical sense. Since the indictment contained but one count, it is obvious that they used it as meaning “ offence,” and that, having reference to the instructions which had been given, they meant to express that the defendants Crowley and Green were guilty of an'assault with intent to commit larceny, and guilty of assault and battery. Commonwealth v. Walsh, 132 Mass. 8.

5. The defendants were acquitted of the full offence with which they were charged under Pub. Sts. c. 202, § 26; and no question as to the sufficiency of the evidence to support the charge of that offence is now open.

6. The defendants requested the court to rule that the only offence charged in the indictment was assault with intent to commit larceny, and therefore they have no ground of complaint because the court allowed the jury to return a verdict of guilty of an offence so described, and no exception on this ground was taken. It appears by the record that the defendants were sentenced “ for their offence of an assault with intent to commit larceny ”; but execution of the sentences was stayed because the court had some doubt whether the sentences should stand. The defendants do not take the point that there is no such offence as assault and battery, with intent to commit larceny; but we know of none. It is not an offence under Pub. Sts. c. 202, § 26, .to commit an assault and battery with intent to commit larceny, without more. That is, it must, also be done “ for the purpose of stealing from a building, bank, safe, vault, or other depository of money.” So far as we are aware, the offence of assault and battery with intent to commit larceny, without more, is not punishable as a distinct offence under any statute of this Commonwealth, or at common law. The words “ with intent to commit larceny ” are merely matter of aggravation of the assault and battery, not in the sense of making a distinct offence, but only as influencing the discretion of the court in fixing the sentence. Commonwealth v. Fischblatt, 4 Met. 354, 356. Commonwealth v. Kennedy, 131 Mass. 584. 2 Bish. Crim. Law, § 42.

The statute which comes nearest to creating an offence of assault with intent to commit larceny is Pub. Sts. c. 202, § 25; but in that a different offence is described, namely, an assault “ with force and violence, and with intent to rob or steal.” This means actual violence, as distinguished from merely constructive force and arms, and it would seem that the intent must be to steal from the person. Since the statute specifies “ force and violence ” as an ingredient of the offence, the charge of the offence should include those words, and an averment that it was committed “ with force and arms ” is not an equivalent. See Commonwealth v. Humphries, 7 Mass. 242; Commonwealth v. Clifford, 8 Cush. 215, 218; Commonwealth v. Shattuck, 4 Cush. 141; 2 Bish. Crim. Proc. §§ 371-380, 390 ; 2 Bish. Crim. Law, §§ 507, 1167. It is not intimated on the part of the government that this indictment would be good as a charge under § 25.

Nor can the indictment be supported as a charge of an attempt to commit the graver offence, under Pub. Sts. c. 210, § 8. A charge of an attempt must be set forth in direct terms. Commonwealth v. Roosnell, 143 Mass. 32, 37, and cases there cited.

The defendants should be sentenced only for assault and battery. This offence was well charged, and they may be sentenced for it, although acquitted of the full offence charged in the indictment. Commonwealth v. Kennedy, 131 Mass. 584. Commonwealth v. Delehan, 148 Mass. 254. Of course, the circumstances of aggravation may be considered, but we cannot know that the sentence would be the same.

So ordered.