145 Mass. 575 | Mass. | 1888
This is a complaint under § 206 of the Pub. Sts. c. 112, which provides that “ Whoever wilfully throws or
The allegation is that the defendant'threw a stone. The words “to wit, a stone,” limit the general meaning of the word “ missile ” and are descriptive of it, and the whole shows that the only missile which the defendant was charged with throwing was a stone. Even if these words are unnecessary, they are material, and cannot be rejected, because they are descriptive of the identity of what is essential to the offence. Some description of the thing thrown is essential, and the description in the complaint is material, and must be proved as laid. Commonwealth v. Wellington, 7 Allen, 299. Commonwealth v. Hartwell, 128 Mass. 415. Commonwealth v. Moore, 130 Mass. 45. Commonwealth v. Luscomb, 130 Mass. 42. Commonwealth v. Tobias, 141 Mass. 129. 1 Greenl. Ev. § 65.
The rule, that, when an allegation is not descriptive of an of-fence charged, but a statement of the manner in which it was committed, it is sufficient to prove the substance of it, as when, in an indictment for murder, the death is alleged to have been caused by a blow with a stone, proof that it was caused by a blow with a stick is sufficient, does not apply to this case. Here the offence consists in throwing a missile, and words describing the missile are descriptive of the offence, and must be strictly proved. We think that the allegation that the missile thrown was a stone was not sustained by proof that it was a billet of wood. Exceptions sustained.
