12 Mass. App. Ct. 489 | Mass. App. Ct. | 1981
The defendant was put to trial on an indictment charging him with unarmed robbery by assault and putting in fear.
The issue before us is “whether ‘the amendment materially change[d] the work of the grand jury’ (Commonwealth v. Benjamin, 358 Mass. 672, 679 [1971]), or otherwise stated, whether the amendment ‘changed the substantive offense charged’ by the grand jury (Commonwealth v. Parrotta, 316 Mass. 307, 312 [1944]).” Commonwealth v. Gallo, 2 Mass. App. Ct. 636, 639 (1974). See Commonwealth v. Liebman, 379 Mass. 671, 676 (1980); Commonwealth v. Morse, ante 426 (1981). See also Reporters’ Notes to Mass.R.Crim.P. 4(d), Mass. Ann. Laws, Rules of Criminal Procedure at 38 (1979). The answer to this turns on whether an indictment for robbery must allege one of the alternative ways (see Commonwealth v. Jones, 362 Mass. 83, 85-87 [1972]) in which that offense can be committed. Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979) (“An indictment . . . shall contain ... a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof”). See Reporters’ Notes to Mass.R.Crim.P. 4(a), Mass. Ann. Laws, Rules of Criminal Procedure at 37 (1979) (“The forms established by G. L. c. 277, § 79, contain sufficient descriptions of the crimes listed therein”
Our review of the record shows that the theory of defense was misidentification. The amendment, therefore, involved no surprise which hampered the preparation or the
The defendant points to the fact that although the jury were not instructed on the offense as originally charged, they had the indictment in its original form in the jury room during their deliberations. If the indictment was sent out with the jury (there is nothing in the record to indicate that it was) the record fails to disclose any objection by the defendant that the formal language of the indictment had not been changed or any request that the indictment be withheld from the jury during deliberations.
We conclude that the defendant was properly convicted as ultimately charged, and we find no substantial risk of a miscarriage of justice in his trial. Our conclusion makes it unnecessary to consider the defendant’s contention that the evidence was insufficient to warrant a finding of unarmed robbery by assault and putting in fear.
Judgment affirmed.
Specifically, the indictment charged that the defendant “not being armed with a dangerous weapon, did assault and put in fear [the victim] with intent to rob her and thereby did rob and steal from the person of [the victim], purse, credit cards, money, of the property of [the victim].”
The statutory form of an indictment framed under G. L. c. 265, § 19, is: “That A.B. did assault C.D. with intent to rob him, and thereby did rob and steal from the person of said C.D. (mention the property) of the property of said C.D.” G. L. c. 277, § 79.