148 Mass. 254 | Mass. | 1889
This is an indictment for an assault and battery upon a police officer, and for knowingly and wilfully obstructing and hindering him in the discharge of his duty. The allegation that the assault was made with a dangerous weapon is descriptive of the manner of the assault; it does not make it a different offence, it does not affect the substance of the charge, and may be rejected as surplusage. The court rightly refused to rule that the indictment would justify no general verdict of guilty. Under this indictment it was competent for the jury to return a verdict of guilty of a simple assault or a general verdict of guilty, which would be a finding of the aggravated assault charged in the indictment, being an assault upon an officer in the discharge of his duty. Commonwealth v. Kirby, 2 Cush. 577.
In the case at bar, when the jury returned into court, the foreman announced the verdict as “ Guilty of an assault on a police officer.” This clearly indicated that the verdict was intended to be for an aggravated, and not for a simple assault. But the verdict was not correct in form, as it did not state with technical accuracy their finding upon the issue tried. It was the right and duty of the judge to instruct the jury as to the correct form of their verdict. And when, in answer to his question, the foreman replied that they meant a verdict of guilty of assault upon an officer in the discharge of his duty, he correctly instructed them that the proper form was a general verdict of guilty. ■ Their second verdict of guilty was rightly received and recorded, and it corrected any irregularity in the first verdict. The defendant has no ground of exception. Commonwealth v. Thompson, 116 Mass. 346. Ashton v. Touhey, 131 Mass. 26.
Exceptions overruled.
