Com. v. Hayden
| Decision Date | 31 December 1889 |
| Citation | 23 N.E. 51,150 Mass. 332 |
| Parties | COMMONWEALTH v. HAYDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from superior court, Norfolk county; EDGAR J. SHERMAN, Judge.
A.J. Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.
J.M. & T.C. Day, for defendant.
The indictment contains but one count, and charges the burning of the dwelling-house of one Melvin Thayer. It appearing at the trial that the building in question has never been occupied as a dwelling-house by said Thayer, the court instructed the jury that it was not his dwelling-house, as alleged, as was decided in Com. v. Barney, 10 Cush. 478, but allowed them to convict the defendant of burning a building of said Thayer other than a dwelling-house, under Pub.St. c. 203, § 4. We are of opinion that this conviction cannot be supported. It was necessary to aver what was burned, and an averment that a dwelling-house was burned must be proved as laid. The statutory offense of burning a dwelling-house does not include within itself the offense of burning a building which is not a dwelling-house. The description of what was burned is essential to fix the identity of the offense, and no part of it can be rejected as surplusage. 1 Greenl.Ev. §§ 58, 65; 3 Greenl.Ev. § 51; Com. v. McCarthy, 145 Mass. 575, 14 N.E. 643; Com. v. Buckley, 145 Mass. 181, 13 N.E. 368; Com. v. Tobias, 141 Mass. 129, 6 N.E. 217; Com. v. Hartwell, 128 Mass. 415; Com. v. Wellington, 7 Allen, 299. See, also, numerous cases collected in 1 Bish.Crim.Proc. §§ 485, 486. It is no doubt true that Pub.St. c. 203, § 4, covers the offense which the evidence tended to prove. The difficulty is that there was no count in the indictment adapted to that offense. The charge was limited to burning a building of the particular kind described, and did not include burning one of any other kind. Exceptions sustained.
To continue reading
Request your trial
-
Commonwealth v. Weston
...v. Luscomb, 130 Mass. 42;Commonwealth v. Howe, 132 Mass. 250;Commonwealth v. Buckley, 145 Mass. 181, 13 N. E. 368;Commonwealth v. Hayden, 150 Mass. 332, 23 N. E. 51. The defendants cite statutes of other states, somewhat similar to that here in force, and decisions under them that notwithst......
-
Worrell v. State, 4 Div. 302
...This judgment is patently erroneous and we do so hold and declare. Smith v. State, 29 Ala.App. 227, 194 So. 702; Commonwealth v. Hayden, 150 Mass. 332, 23 N.E. 51; Dedieu v. People, 22 N.Y. 178; State v. Murphy, 214 La. 600, 38 So.2d 254; Volume 6, C.J.S. Arson § 45, page 770; 5 Am.Jur.2d, ......
-
State v. Beckwith
...sufficiently definite to fix the identity of the substantive offense charged within the rule of State v. Crouse, supra; Commonwealth v. Hayden, 150 Mass. 332, 23 N.E. 51; Commonwealth v. Smith, supra. Furthermore, both sections 2 and 3 of the chapter, as amended, in so far as they relate to......
-
Commonwealth v. Cabot
...Mass. 54; Commonwealth v. Luscomb, 130 Mass. 42; Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Buckley, 145 Mass. 181; Commonwealth v. Hayden, 150 Mass. 332. The defendants statutes of other States, somewhat similar to that here in force, and decisions under them that notwithstanding......