Commonwealth v. Buckley

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES
• Citation: 13 N.E. 368,145 Mass. 181
• Decision Date: 20 October 1887
• Parties: COMMONWEALTH v. BUCKLEY and another.

145 Mass. 181
13 N.E. 368

COMMONWEALTH
v.
BUCKLEY and another.

Supreme Judicial Court of Massachusetts, Plymouth.

October 20, 1887.

Exceptions from superior court, Plymouth county; THOMPSON, Judge.

Indictment charging that the defendants, on a certain day, to-wit, at Brockton, on May 14, 1887, “knowingly, willfully, and maliciously did verbally threaten to accuse one Frank E. White, of Brockton, aforesaid, of having committed the crime of burning a building not his own, to-wit, the store of John D. White, by words then and there knowingly, willfully, and maliciously spoken of and to the said Frank E. White, substantially as follows: ‘You [[[meaning the said Frank E. White] are the man that set the fire, and, unless you give us one hundred dollars, we will make it hot for you. We will make a jail-bird of you,’-with intent then and there to extort money, to-wit, the sum of one hundred dollars, from him, the said Frank E. White, against the peace,” etc. At the trial in the superior court, it was proved, but the attention of the court was not called to the fact until after the commencement of the charge, that the name of the person referred to and designated in said indictment as Frank E. White was Frank A. White, and not Frank E. White, and there was no evidence tending to show that said Frank A. White had ever been known or called Frank E. White, until so designated in the indictment; and thereupon the defendants asked the court to rule that there was a variance between the allegations in said indictment and the proof, and that, by reason of said variance, the jury should return a verdict of not guilty. The court refused to so rule, and ruled that if the jury were satisfied that Frank A. White is the person called Frank E. White in the indictment, there was no variance as claimed by defendants. The jury returned a verdict of guilty, and the defendants alleged exceptions.

[145 Mass. 181]

[13 N.E. 369]

J.M. & T.C. Day, for defendants.

The indictment should have been quashed, as it does not allege that defendants threatened to accuse Frank E. White of a crime or offense. It is only the willful and malicious burning of a building that is made a crime. Pub.St. c. 203, § 4. The indictment does not allege, excepting argumentatively, that defendants threatened to charge Frank E. White with having willfully and maliciously burned the building or store of John D. White, and is therefore bad. Com. v. Runnels, 10 Mass. 520;Com. v. Call, 21 Pick. 515, 521;Turns...