Com. v. Buckley

• Decision Date: 20 October 1887
• Citation: 13 N.E. 368,145 Mass. 181
• Parties: COMMONWEALTH v. BUCKLEY and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 181

13 N.E. 368

COMMONWEALTH v. BUCKLEY and another.

Supreme Judicial Court of Massachusetts, Plymouth.

October 20, 1887

COUNSEL

J.M. & T.C. Day, for defendants.

The indictment should have been quashed, as it does not allege that defendants threatened to accuse Frank E. White of a crime or offense.It is only the willful and malicious burning of a building that is made a crime.Pub.St. c. 203, § 4.The indictment does not allege, excepting argumentatively, that defendants threatened to charge Frank E. White with having willfully and maliciously burned the building or store of John D. White, and is therefore bad.Com. v. Runnels,10 Mass. 520;Com. v. Call,21 Pick. 515, 521;Turns v. Com., 6 Metc. 224-234.In all of the reported cases of indictments under Pub.St. c. 202, § 29, the crime or offense that the defendant threatened to accuse another of has been set forth in terms fully and technically descriptive.SeeCom. v. Goodwin,122 Mass. 19.The government was bound to prove the allegations in the indictment that John D. White was the owner of the building, the burning of which the indictment alleges the defendants threatened to accuse the said Frank E. White of.Com. v. Wade,17 Pick. 395.The rulings given by the court in place of the one asked were applicable only to prosecutions of offenses "in relation to or affecting real or personal estate" and were erroneous.Pub.St. c. 214, § 14.Government was bound to prove that the name of the party alleged to have been threatened was Frank E. White.Com. v. Pope,12 Cush. 272;Com. v. Mehan,11 Gray, 321, and cases cited.

A.J. Waterman, Atty. Gen., for the Commonwealth.

The rulings of the court were correct.The motion to quash the indictment was properly overruled.It was substantially in the language of the statute, and sufficient.Com. v. Murphy,12 Allen, 450;Com. v. Carpenter,108 Mass. 15;Com. v. Moulton,108 Mass. 307;Com. v. Dorus,108 Mass. 488;Com. v. Andrews,132 Mass. 263;Com. v. Goodwin,122 Mass. 19;Com. v. Bacon,135 Mass. 521;Com. v. Philpot,130 Mass. 59.The ruling of the court upon the question of variance is in accordance with many precedents.State v. Williams,20 Iowa, 98;Rex v. Newman, 1 Ld.Raym. 562;Bish.Crim.Proc. § 683;Edmundson v. State,17 Ala. 179;Miller v. People,39 Ill. 457;Choeen v. State,52 Ind. 347;People v. Cook,14 Barb. 259: State v. Manning,14 Tex. 402;Dodd v. State, 2 Tex.App. 58.The court properly refused to rule as requested upon the point of the ownership of the property; and rightly ruled that if White was in possession of the store there would be no variance.Com. v. Dale,144 Mass. 363, 11 N.E. 534;Pub.St. c. 214, § 14;Com. v. Goldstein,114 Mass. 277.

OPINION

HOLMES, J.

The name of the person threatened is necessary to the identity of the offense charged in the indictment, and therefore must be proved as set forth.Com. v. Mehan,11 Gray, 321.It is settled in this commonwealth that a middle name or initial is part of the name, and a variance in regard to it is fatal.Com. v. Perkins, 1 Pick. 388;Com. v. Hall, 3 Pick. 262;Com. v. Shearman,11 Cush. 546.The ruling that there was no variance if Frank A. White was the person called Frank E. White in the indictment, probably went upon the ground that the E. might be rejected as surplusage, as is held in some states.It cannot be said as matter of law that A. and E. are the same.There was no evidence that the party was ever called Frank E. White.Exceptions sustained.