| Me. | Jul 1, 1852
— The accused were found guilty on the second count in the indictment, which alleges, that they made an assault with a loaded gun, with an intent to maim Martin Magoon, and that with it they did then and there shoot, wound and maim him.
A motion was made in arrest of judgment, which was overruled.
The objection to the count, taken in argument is, that it is bad for duplicity.
An assault, being armed with a dangerous 'weapon, with an intent to maim, is made felony by statute, c. 154, § 29, and that offence appears to be sufficiently described. The offence described in the thirteenth section of the same statute is not sufficiently described in the latter part of the count. Nor is there any other offence punishable by our law therein described.
The question arises, whether a count describing one offence with sufficient accuracy, and containing no sufficient description of any other offence, is bad for duplicity ? The case o f Commonwealth v. Atwood, 11 Mass. 93" court="Mass." date_filed="1814-03-15" href="https://app.midpage.ai/document/commonwealth-v-atwood-6404145?utm_source=webapp" opinion_id="6404145">11 Mass. 93, appears to have de
This may be correct when there is no other offence charged in the count; and in such case there would be no occasion to reject the averment as surplusage, for the count would be insufficient. When another offence is sufficiently described in the count, it is apparent that the defective allegations cannot have been the only ground of conviction.
The cases of Commonwealth v. Tuck, 20 Pick. 356, and same v. Hope, 22 Pick. 1, decide, that defective averments are in many respects no averments in contemplation of law. It is quite certain that no judgment can be sustained by virtue of them.
The accused could not have been subjected to any additional danger on account of the defective averments in the count, upon which they were found guilty. They were of no importance, and their insertion does not render the count bad for duplicity, for it does not contain a description of two different offences. It contains a description of one offence and some additional averments not describing any other offence. To constitute duplicity two offences must be sufficiently described. Commonwealth v. Tuck.
It is also insisted, that the offence of making an assault with a dangerous weapon with intent to maim, is merged in the commission of the offence. No other offence being charged in the count there can be no merger. Proof of the defective averments would be insufficient to prove the 'commission of another offence, in which the assault with intent to commit an offence could be merged.
If two distinct offences had been sufficiently described in the same count, it would seem that the objection should have been taken by a motion to quash or by a demurrer. Commonwealth v. Tuck. Exceptions overruled.