Com. v. Smith

• Decision Date: 10 May 1890
• Citation: 24 N.E. 677,151 Mass. 491
• Parties: COMMONWEALTH v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 491

24 N.E. 677

COMMONWEALTH v. SMITH et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 10, 1890

May 10 1890

HEADNOTES

COUNSEL

E Avery and M.T. Allen, for defendant.

OPINION

DEVENS, J.

The first count of the indictment upon which the defendant was convicted alleged that he, with others, on a day specified, with force and arms, at Woburn, in said county of Middlesex, "a certain building, to-wit, a house of one John R. Carter, there situate, feloniously, willfully, and maliciously did set fire to and burn, against the peace of the commonwealth," etc. The defendant requested a ruling that this averment set out, under the first section of Pub.St. c. 203, the crime of arson. This was refused by the presiding judge, who ruled that said averment charged the offense of burning a building, under the fourth section of chapter 203. To the refusal of his request, and to the ruling as given, the defendant excepted.

While, in an indictment at common law for arson, there was no occasion to describe the building upon which it was committed as a "dwelling-house," and the term "house," would suffice, yet, when the crime of arson was made a statutory offense in this commonwealth, which could be committed only on a dwelling-house, it became necessary thus to allege and prove it. Com. v. Barney, 10 Cush. 478. While the statute (chapter 203, § 1) provides for the offense of burning a dwelling-house, section 4 provides for those of burning "a banking-house, warehouse, store, manufactory, mill, barn, stable, shop, office, outhouse, or other building whatsoever of another, other than is mentioned in section two." These statutory offenses under the first and fourth sections, are so far distinct that, under an indictment charging the burning of a dwelling-house, where it appeared that the building burned had never been occupied as a dwelling, it was held that there could be no conviction of burning a building other than a dwelling-house, and that the statutory offense of burning a dwelling-house did not include within itself the offense of burning a building which was not a dwelling-house. The description of what was burned was essential to fix the identity of the offense. Com. v. Hayden, 150 Mass. 332, 23 N.E. 51. The statutory crime of arson could, therefore, be charged only by alleging the building burned to have been a dwelling-house. It would not, however, follow that, under the general words which follow the buildings enumerated in the fourth clause, "or other buildings whatsoever," an indictment might not be sustained which charged the burning of a building described as "a house," even if it were proved at the trial to have been "a dwelling-house" which was burned. In such case, everything necessary to constitute the statutory offense charged would have been alleged. It is no defense to an indictment that the facts in proof show that the defendant committed an offense of a higher degree than that charged. Com. v. McPike, 3 Cush. 181; Com. v. Walker, 108 Mass. 309. The evidence of Carter as to the character of the building burned was admissible, even if it also showed the house to be a dwelling-house, or adapted to be such.

The defendant further contends that the admission of the book containing the written portion of the policy of insurance issued to Arthur B. Kendall, supplemented by the oral testimony of the agent of the insurance company that it, with the printed part known as the "standard policy" of this commonwealth, with certain exceptions mentioned constituted a true copy of the policy, was erroneous. A demand had been made upon the defendant Smith for the policy, and it had not been found among the effects of A.B. Kendall, who was a fugitive from justice; and there was evidence that ...