Commonwealth v. HarneyCommonwealth v. Harney
- Reporters:
- Before:
- Dewey
Thе counts in this indictment are not bad for duplicity. It is true that they set forth a breaking and entеring in the night time of a certain building therein described ; but that allegation is only introduced as a part of the various acts charged to have been committed by the defendant, all which combined authorize the charge of the specific offence made punishable by Rev. Sts. c. 133, <§> 12. It is not unusual to find in a count properly framed all thе essential elements of a count for a minor offence, and presenting thе objection of duplicity quite as strongly as the present case. Thus, in an indictment for murder or manslaughter, there is a full and technical charge of an assault and battery. In burglary, when an actual larceny is alleged as perpetrated after entry, there is a technical charge of larceny; but if connected with the actual breaking and entering, and set forth in the same count, the count is not bad for duplicity. In an indictment for a battery, an assault preceding the battery is alleged, аnd in sufficiently technical terms, but the count is good for *426a battery and not objectionable for duplicity. In the present case, the propriety of setting forth the various acts of the defendant, connected with the attempt to set fire to the building, is quite obvious; the statute itself making the crime to consist in attempting to commit an оffence prohibited by law, and in such attempt doing any act towards the commissiоn of such offence. Rev. Sts. ubi sup. The various acts of the defendant, done in the attempt to set fire to the building, were properly set forth in this indictment, and the objectiоn of duplicity is not well sustained.
The next objection relied upon is that of a variance between the proof and the indictment, in the matter of the ownership оf the building attempted to be set on fire. The indictment alleged the same to be in оne Bernard Walmire. The proof was, that said Walmire was joint lessee with anothеr person. This might have been a fatal variance, but for the provision in the Rev. Sts. с. 133, § 11. This entirely obviates the objection. The provision is, that in the prosecution of any offence affecting any real estate, it shall be a sufficient allegation, and not deemed a variance, if it be proved on the trial that any part of such estate was in the person alleged in the indictment to be the owner thеreof.
The counsel for the defendant insist, however, that to bring the case within this statutе provision, some specific part of the building must have-been the property of Bernard Walmire, and that it will not apply to a case where the persоn alleged to be the owner was the owner of a moiety, or other part, as joint tenant or tenant in common with others. Such is not, as we think, the proper cоnstruction of the statute, nor would such provision be at all adequate as a remedy for the mischief which had been experienced, and which we may presume was intended to be avoided by a legislative act on this subject. Cases of variаnce of this.nature are much more likely to occur in offences relating tо personal than real estate, as such offences are so much more frequently the subject of indictment. But rarely indeed would the case present itself where one specific part of a personal chattel belonged tо A. and *427another specific portion of the same chattel to B. The morе usual form in which ownership of property would present itself would be that of an undivided interest in the entire property. This objection was therefore propеrly overruled by the court of common pleas.
The remaining objection seеms rather to present a question of fact than law. Whether the acts done by thе defendant were such as to authorize the jury to find an attempt to set fire to any other than the particular building in which the materials were placed, and which wаs the first to be exposed to be consumed, was wholly a matter for the jury, as it was properly left to them.
Exceptions overruled.