Com. v. Shedd
| Decision Date | 07 January 1886 |
| Parties | COMMONWEALTH v. SHEDD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.F. Dore, for defendant.
E.J. Sherman, Atty. Gen., for the Commonwealth.
The defendant was indicted, on Pub.St. c. 210, § 8, for an attempt to commit burglary. The indictment alleges that the defendant, a dwelling-house described, "in the night-time, feloniously did attempt to break and enter, with intent the goods and chattels in said building then and there being found then and there feloniously to steal, take, and carry away, and in such attempt" did certain acts; but "was then and there intercepted and prevented in the execution of said offense." The indictment is sufficient. Com. v. Flynn, 3 Cush. 529; Com. v. McLaughlin, 105 Mass. 460.
It is argued that it is uncertain whether the words "said offense" refer to the burglary or to the larceny, or to the attempt to commit burglary. But there is no uncertainty. The intent to commit larceny is alleged only as a part of the offense of burglary, which the defendant is alleged to have attempted to commit; and the burglary, and not the attempt to commit it, is certainly the offense, in the execution of which the defendant is alleged to have been intercepted and prevented. The motion to quash the indictment was rightly overruled.
There was evidence tending to prove that the defendant broke and opened two windows, which was the act alleged to have been done in the attempt to commit the burglary; and the jury might well have inferred, from the circumstances attending the act, and from the conduct and declaration of the defendant, that the act was done for the purpose of stealing from the building. The court could not properly have given the instructions prayed for, that on the evidence the jury would not be warranted in finding a verdict of guilty.
Exceptions overruled.
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