Com. v. Crowley

• Decision Date: 12 January 1897
• Citation: 167 Mass. 434,45 N.E. 766
• Parties: COMMONWEALTH v. CROWLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 434

45 N.E. 766

COMMONWEALTH v. CROWLEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 12, 1897

COUNSEL

F.F. Sullivan and Joseph M. Sullivan, for appellants.

John D McLaughlin, Second Asst. Dist. Atty., for the Commonwealth.

OPINION

ALLEN J.

1. The motion to quash was rightly overruled. The indictment contains a valid charge of assault and battery. As an indictment under Pub.St. c. 202, § 26, it need not aver the ownership of the goods intended to be stolen (see Com. v Moore, 130 Mass. 45); and in other respects an indictment substantially similar, though open to criticism was held sufficient, in Com. v. Holmes, 165 Mass. 457, 43 N.E. 189.

2. The witness Lord having testified that the defendant Crowley struck him, there was no valid objection to the questions, "How do you know it was Crowley that struck you?" and "What was Crowley doing when you turned around?" This objection appears to have been founded upon the language of the court in Com. v. Phillips, 162 Mass. 504, 39 N.E. 109, but in that case the witness had not named the defendant.

3. The evidence as to the property said to have been stolen was competent, upon the charge of the offense under Pub.St. c. 202, § 26.

4. The verdict of the jury was properly received and recorded. The purpose of directing the jury to put in writing the result which they had agreed upon was to enable the court to see that their verdict, as orally announced, conformed to what they had agreed upon before their separation. In their writing the jury did not use the word "count" in its technical sense. Since the indictment contained but one count, it is obvious that they used it as meaning "offense," and that, having reference to the instructions which had been given, they meant to express that the defendants Crowley and Green were guilty of an assault with intent to commit larceny, and guilty of assault and battery. Com. v. Walsh, 132 Mass. 8.

5. The defendants were acquitted of the full offense with which they were charged, under Pub.St. c. 202, § 26, and no question as to the sufficiency of the evidence to support the charge of that offense is now open.

6. The defendants requested the court to rule that the only offense charged in the indictment was assault with intent to commit larceny, and therefore they have no ground of complaint because the court allowed the jury to return a verdict of guilty of an offense so described, and no exception on this ground was taken. It appears by the record that the defendants were sentenced "for their offense of an assault with intent to commit larceny," but execution of the sentences was stayed because the court had some doubt whether the sentences should stand. The defendants do not take the point that there is no such offense as assault and battery with intent to commit larceny, but we know of none. It is not an offense under Pub.St. c. 202, § 26, to commit an assault and battery with intent to commit larceny, without more; that is, it must also be done "for the purpose of stealing from a building, bank, safe, vault, or other depository of money." So far as we are aware, the offense of assault and battery with intent to commit larceny, without more, is not punishable, as a distinct offense, under any statute of this commonwealth, or at common law. The words "with intent to commit larceny" are merely matter of aggravation of the assault and battery, not in the sense of making a distinct offense, but only as influencing the discretion of the court in fixing the sentence. Com. v. Fischblatt, 4 Metc. (Mass.) 354, 356; Com. v. Kennedy, 131 Mass. 584; 2 Bish. New Crim....