284 Mass. 417 | Mass. | 1933
Each of these indictments in substance and effect charged that the defendant at Orange, on September 20, 1932, “did willfully and maliciously aid, counsel or assist in an attempt” “to set fire to or burn” a building known as the Orange Hotel. Each defendant filed a motion to quash the indictment, which was denied subject to exception. Each indictment is framed on § 5A, added to G. L. (Ter. Ed.) c. 266 by St. 1932, c. 192, § 5. Its words, so far as here material, are these: “Whoever wilfully and maliciously attempts to set fire to, or attempts to burn, or aids, counsels or assists in such an attempt to set fire to or burn, any of the buildings, structures or property mentioned in the foregoing sections, or whoever commits any act preliminary thereto or in furtherance thereof, shall be punished by imprisonment in a jail or house of correction for not more than two and one half years or by a fine of not more than one thousand dollars.”
The defendants contend that the indictments were defective in that they omitted the words “wilfully and maliciously” as descriptive of the attempt “to set fire to or burn” and that this defect was not supplied by charging that the defendants did “wilfully and maliciously aid, counsel or assist” “in an attempt ... to set fire to or burn.” They rely in this connection upon Commonwealth v. Cooper,
Each defendant filed a motion that a verdict of acquittal be directed. There was ample evidence to the effect that the defendant Jaffas, a part owner of the building, employed the defendant Malekourdis to find some one to set fire
The circumstance that collection of insurance may have been an underlying motive of Jaffas does not prevent a finding of guilty under § 5A, added to G. L. (Ter. Ed.) c. 266 by St. 1932, c. 192, § 5. Penalty is provided by St. 1932, c. 192, § 7, amending G. L. (Ter. Ed.) c. 266, § 10, for wilfully burning certain insured property with intent to defraud or injure the insurer. That crime is a felony. It is a crime often involving difficulty of allegation and proof. Commonwealth v. Asherowski, 196 Mass, 342, Common
In each case the entry may be
Exceptions overruled.