| Mass. | Oct 28, 1878
The second count is sufficient, being substantially like that the validity of which was affirmed in Commonwealth v. Webster, 5 Cush. 295, 323. The evidence at the trial was conflicting as to the manner and means of death, and it does not appear but that there was other evidence before the grand jury. The Chief Justice of the Superior Court therefore rightly refused to rule that the second count was not supported by the evidence; and his instructions to the jury were sufficiently favorable to the defendant. When an indictment charges the defendant in one count with killing by a certain weapon, and in another count with killing by means and instruments to the grand jurors unknown, and at the trial the killing by the defendant is proved beyond a reasonable doubt, and there is no evidence of the particular means of death, the jury may convict on the second count. Commonwealth v. Tompson, 2 Cush. 551. Commonwealth v. Thornton, 14 Gray, 41. Commonwealth v. Glover, 111 Mass. 395" date_filed="1873-01-15" court="Mass." case_name="Commonwealth v. Glover">111 Mass. 395, 401. The objection, made in argument, that the instructions given covered only the means, weapons or instruments by which, and not the way or manner in which, the killing was done, does not appear to have been suggested at the trial and is not open to the defendant. Exceptions overruled.