| Mass. | Dec 31, 1889
The indictment contains but one count, and charges the burning of the dwelling-house of one Melvin Thayer. It appearing at the trial that the building in question had never been occupied as a dwelling-house by said Thayer, the court (in accordance with the decision in Commonwealth v. Barney, 10 Cush. 478) instructed the jury that it was not his dwelling-house, as alleged, but allowed them to convict the defendant of burning a building of said Thayer other than a dwelling-house, under the Pub. Sts. c. 203, § 4. We are of opinion that this conviction cannot be supported. It was necessary to aver what was burned, and an averment that a dwelling-house was burned must be proved as laid. The statutory offence of burning a dwelling-house does not include within itself the offence of burning a building which is not a dwelling-house. The description of what was burned is essential to fix the identity of the offence, and no part of it can be rejected as surplusage. 1 Greenl. Ev. §§ 58, 65. 3 Greenl. Ev. § 51. Commonwealth v. Wellington, 7 Allen, 299. Commonwealth v. Hartwell, 128 Mass. 415" court="Mass." date_filed="1880-02-27" href="https://app.midpage.ai/document/commonwealth-v-hartwell-6419893?utm_source=webapp" opinion_id="6419893">128 Mass. 415, 419. Commonwealth v. Tobias, 141 Mass. 129" court="Mass." date_filed="1886-02-24" href="https://app.midpage.ai/document/commonwealth-v-tobias-6421948?utm_source=webapp" opinion_id="6421948">141 Mass. 129. Commonwealth v. Buckley, 145 Mass. 181" court="Mass." date_filed="1887-10-20" href="https://app.midpage.ai/document/commonwealth-v-buckley-6422534?utm_source=webapp" opinion_id="6422534">145 Mass. 181. Commonwealth v. McCarthy, 145 Mass. 575" court="Mass." date_filed="1888-01-06" href="https://app.midpage.ai/document/commonwealth-v-mccarthy-6422648?utm_source=webapp" opinion_id="6422648">145 Mass. 575. See also numerous cases collected in 1 Bish. Crim. Proc. (3d ed.) §§ 485, 486. It is no doubt true that the Pub. Sts. c. 203, § 4, cover the offence which the evidence tended to prove. The difficulty is,' that there was no count in
Exceptions sustained.