Commonwealth v. Adams
Citation | 127 Mass. 15 |
Parties | Commonwealth v. Mary J. Adams |
Decision Date | 17 June 1879 |
Court | United States State Supreme Judicial Court of Massachusetts |
Suffolk. Indictment in two counts. The second count was as follows:
In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment. Colburn, J., overruled the motion. The defendant was then tried, and the jury returned a verdict of not guilty on the first count, and of guilty on the second count, but that the death of Clark did not result from the miscarriage as alleged in the indictment. The defendant alleged exceptions, the substance of which appears in the opinion.
Exceptions overruled.
A. Russ & D. A. Dorr, for the defendant.
G. Marston, Attorney General, for the Commonwealth.
The defendant seasonably filed a motion to quash the indictment. We need consider it only so far as applicable to the second count, the jury having returned a verdict of not guilty upon the first count.
1. The second count is framed under the Gen. Sts. c. 168, § 3, which provides that "whoever aids in the commission of a felony, or is accessory thereto before the fact, by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner prescribed for the punishment of the principal felon." The count, after averring the commission of the felony by some person unknown, alleges that the defendant "before the said felony and abortion was committed in manner and form aforesaid, to wit, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms, at Chelsea aforesaid, did feloniously and maliciously incite, move and procure, aid, counsel, hire and command the said person as aforesaid unknown the said felony and abortion, in manner and form aforesaid, then and there to do and commit."
This sufficiently charges the offence of being an accessory before the fact to the felony described. It is clearly insufficient as a charge that the defendant was present aiding and assisting in the commission of the principal felony, and so was a principal in the second degree under the Gen. Sts c. 165, § 9. The word "aid" might be applicable to such a charge, but, taken in connection with the context, and especially with the allegation that the aid was rendered "before the said felony and abortion was committed in manner and form aforesaid," no construction is admissible except that it was intended to, and does, charge that the defendant was an accessory before the fact to the felony. The defendant contends that the indictment is insufficient, because, although it alleges that the principal felon unlawfully used some unlawful means, with the intent to procure an abortion, yet it is not alleged that the defendant incited or procured said acts to be done with a like intent, or with any unlawful intent. But the allegation that the defendant maliciously and feloniously incited and procured the principal to...
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