167 Mass. 420 | Mass. | 1897
This is not an indictment under Pub. Sts. c. 203, § 2, because it is not alleged that the warehouse with the property therein contained was of the value of one thousand dollars. It is an indictment under § 4 of that chapter. Commonwealth v. Smith, 151 Mass. 491. It is an offence under § 4 wilfully and maliciously to burn a warehouse, whether the warehouse be burned in the daytime or in the night-time. The allegation that the burning was in the night-time was therefore unnecessary. The attorney of the Commonwealth had the right to enter a nolle prosequi as to this part of the indictment, before the jury were empanelled. Commonwealth v. Tuck, 20 Pick. 356. It may be that, without a nolle prosequi, the allegation that the burning was in the night-time could be rejected as surplusage. It was not a constituent element of the offence, and perhaps it could be regarded as not so far descriptive of the offence that it must be proved as laid, but it is unnecessary to decide this. The indictment' is not bad for duplicity; but one offence is charged in it, nor is it uncertain w'hat the offence is. Commonwealth v. Hamilton, 15 Gray, 480.
The demurrer to the defendant’s special plea in bar was rightly sustained. Pub. Sts. c. 89, §§ 18-22, do not take away the jurisdiction of the Superior Court to try a defendant under the age of seventeen years on such an indictment. See Fanning v. Commonwealth, 120 Mass. 388.
As the offence was not punishable with death or" imprisonment for life, the defendant was entitled to but two peremptory challenges. Pub. Sts. c. 170, § 36. No error is shown in the refusal of the court to give the first, second, and third instructions requested. The indictment was sufficient, and, as the evidence is not set out in the exceptions, we cannot say that the evidence was insufficient to warrant the verdict. The fifth instruction requested was given in substance. The thirteenth
^Exceptions overruled.
