Commonwealth v. Ashton

Decision Date03 September 1878
Citation125 Mass. 384
PartiesCommonwealth v. Harry Ashton
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Suffolk. Indictment in two counts. The second count, upon which the defendant was convicted, charged that the defendant, at Boston, on April 7, 1877, "did fraudulently obtain from one Joseph C. Fletcher, by means of a game, device, sleight of hand and trick, by the use of cards and other implements and instruments, a more particular description of which said game, device, sleight of hand trick, implements, instruments and cards, is to said jurors unknown, certain moneys, to wit, divers promissory notes current as money in said Commonwealth, of the amount and of the value in all of eight hundred and seventy dollars, a more particular description of which is to said jurors unknown, of the property of him said Fletcher."

In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment, for the following reasons: "1. That no offence against the law is set forth. 2. That the indictment is utterly wanting in due precision and certainty. 3. That nothing is set forth in the indictment as to what kind of game, device, trick, or sleight of hand, or means by which certain moneys were fraudulently obtained, or by whom the cards, implements or instruments were used, or with what intent the property was obtained. 4. That nothing is set forth therein, bringing the charge within the Gen. Sts. c. 161, § 57, or any other specific statute, or indicating any other specific legal charge of crime. 5. That the indictment is uncertain repugnant, duplex, and otherwise defective and void." Allen J., over ruled the motion; and the defendant excepted.

At the trial, the government introduced evidence tending to prove that the defendant obtained bank-bills by the use of a large piece of pasteboard, on which were drawn a number of squares, numbered and marked, and tickets bearing corresponding numbers.

The defendant asked the judge to rule that the government had failed to prove the charge alleged in the indictment, by reason of a variance, because the property proved to have been obtained consisted of bank-bills, and not promissory notes of any description within the meaning of the statute; because said bank-bills were not money or promissory notes as alleged; and because the government had failed to prove that the bank-bills were obtained by the use of cards and other implements known or unknown to the grand jury. The judge declined so to rule; and instructed the jury that the second count of the indictment would be sustained by proof that the defendant fraudulently obtained bank-bills of Fletcher by a game, by the use of some implement or instrument not known to the grand jury; and that it was not necessary to prove that cards were also used.

The jury returned a verdict of guilty on the second count: and the defendant alleged exceptions.

Exceptions overruled.

J. H. Bradley, for the defendant.

C. R. Train, Attorney General, for the Commonwealth.

Morton, J. Colt & Soule, JJ., absent.

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10 cases
  • Com. v. Dewhirst
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 26, 1906
    ...190 Mass. 293 76 N.E. 1052 COMMONWEALTH v. DEWHIRST. Supreme Judicial Court of Massachusetts, Essex.February 26, 1906 ...          COUNSEL ... [190 Mass. 295] ... it is enough if the crime be charged in the language of the ... act creating it. Commonwealth v. Ashton, 125 Mass ... 384; Commonwealth v. Prescott, 151 Mass. 60, 23 N.E ... 729; Commonwealth v. Dill, 160 Mass. 536, 36 N.E ... [190 Mass. 296] ... ...
  • Commonwealth v. Dyer
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 22, 1880
    ... ... or complaint is sufficient which charges the offence in the ... words of the statute. Commonwealth v ... Raymond, 97 Mass. 567. Commonwealth v ... Barrett, 108 Mass. 302. Commonwealth v ... Malloy, 119 Mass. 347. Commonwealth v ... Ashton, 125 Mass. 384. See also ... Commonwealth v. McClellan, 101 Mass. 34 ... But when the words of a statute may by their generality ... embrace cases falling within its literal terms, which are not ... within its meaning or spirit, the indictment or complaint ... must set forth all facts ... ...
  • Com. v. Dill
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 28, 1894
    ...limit the offense to some mode of unnatural copulation, and a charge in the words of the statute is sufficient to set it forth. Com. v. Ashton, 125 Mass. 384; Com. Malloy, 119 Mass. 347; Com. v. Barrett, 108 Mass. 302; State v. Williams, 34 La.Ann. 87. If there were any doubt upon the foreg......
  • State v. Gray
    • United States
    • Minnesota Supreme Court
    • May 27, 1882
    ...alleged in the alternative is certainly sufficient. These very questions as to the sufficiency of the indictment were decided in Com. v. Ashton, 125 Mass. 384. The statute relating to the offence was substantially like that of our own state, above recited. The indictment, following the lang......
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