Commonwealth v. Cooper

Decision Date14 September 1928
Docket NumberNo. 6054.,6054.
Citation264 Mass. 378,162 N.E. 733
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Criminal Court, middlesex County.

Herbert Cooper was convicted of attempting to burn another's building, and he appeals. Reversed, and verdict set aside.

See, also, 162 N. E. 729.Maurice Caro and John F. Barry, both of Boston, for appellant.

Robert T. Bushnell, Dist. Atty., and Frank G. Volpe, Asst. Dist. Atty., both of Boston, for the Commonwealth.


This indictment as returned by the grand jury charged that the defendant on a specified date at a designated place ‘did attempt to burn the building of Frances Winograd, and in such attempt did set a fire in the cellar of said building, but did fail in the perpetration of said attempted offense, and was intercepted and prevented in the execution of said attempted offense, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.’ No reference is made in the indictment to a particular statute. See, as to attempts to commit crime, G. L. c. 274, § 6.

[1][2] The indictment in this form charged no criminal offense known to the law of this commonwealth. Arson was defined at common law as ‘the malicious and willful burning the house or outhouse of another man.’ 4 Bl. Com. 220, 221. By G. L. c. 266, §§ 1, 2, 3, 4, and 5, the crime of arson has been somewhat differentiated, and other acts assimilated to that crime, by including the burning, not only of dwelling houses, but of other classes of structures not embraced within arson at common law; but all these statutory descriptions of crime contain the words ‘willfully and maliciously’ as an integral part of the several offenses there defined. In this respect they stand on the same footing as arson at common law. These words are essential. They are not mere form. They constitute the substance of the crime. Without these indispensable words no crime is set forth. They must be alleged in the indictment and proved at the trial. Their omission is not insubstantial or technical, but goes to the root of the whole matter. Not infrequently an act done with an innocent purpose violates no law, and yet becomes unlawful when done with a malicious and willful design to cause injury. The act set forth this indictment belongs to that class.

This point is covered by the authority of Commonwealth v. Makely, 131 Mass. 421, where it was held in a somewhat similar case that malice must be proved and that the burden of proof was not sustained where the burning was shown to have been at the procurement of the owner of the building. It there was said at page 422:

‘The crime consists in the willful and malicious burning. * * * It would not have been arson in Ackert [the owner] if he had himself burned his house.’

The provisions of G. L. c. 277, § 33, do not permit the omission from the indictment of the averment that the attempt to burn was willful and malicious. It rather emphasizes the necessity of such averment by excepting from its provisions, to the effect that ‘willfully, maliciously’ need not be alleged, cases where ‘willfully’ and ‘maliciously’ are words descriptive of ‘an element of the crime charged.

The district attorney attempted to remedy this defect in the indictment, after the trial had begun, by moving to amend the indictment by the insertion of the words ‘willfully and maliciously’ in two places so as thus to qualify the ‘attempt to burn’ and also the setting of the ‘fire in the cellar.’ If the indictment had been returned, so as to read as sought to be changed by the amendment, it would have been sufficient. This amendment was allowed against the exception of the defendant.

It is provided by St. 1926, c. 227, whereby section 35a was added to G. L. c. 277:

‘Upon motion of the district attorney or prosecuting officer, the court may order the complaint or indictment amended in relation to allegations or particulars as to which the defendant would not be prejudiced in his defense.’

As to the probable origin of this statute, see Report of the Attorney General for the Year Ending November 30, 1925, p. 10. No argument has been addressed to us touching the general validity, scope and limitations of this statute. We do not undertake to discuss broadly its provisions or to define its sweep. This decision is confined to the precise point raised. Here was a presentment by the grand jury which set out no offense. As it was framed originally the court was without jurisdiction to try the defendant or to sentence him. That question could have been raised at any stage of the proceedings. The court of its own motion would be bound to take notice of it. Commonwealth v. Connor, 155 Mass. 134, 29 N. E. 204;Commonwealth v. Andler, 247 Mass. 580, 582, 142 N. E. 921.

The amendment offered and allowed was not ‘in relation to...

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26 cases
  • Com. v. Binkiewicz
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 9 Junio 1961
    ...presumably intended to be charged, as the opinion noted, was a different crime from that stated in the amendment. Commonwealth v. Cooper, 264 Mass. 378, 381-382, 162 N.E. 733, Commonwealth v. Bracy, 313 Mass. 121, 126, 46 N.E.2d 580, and Commonwealth v. Parrotta, 316 Mass. 307, 55 N.E.2d 45......
  • Commonwealth v. Di Stasio
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 7 Abril 1936 relation to allegations or particulars as to which the defendant would not be prejudiced in his defence.’ In Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733, it was held that an indictment which, because of the omission of the words ‘willfully and maliciously,’ set out no offense, co......
  • Commonwealth v. Kimball
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Febrero 1938
    ...statute (Commonwealth v. Freelove, 150 Mass. 66, 67, 22 N.E. 435;Commonwealth v. Andler, 247 Mass. 580, 142 N.E. 921;Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733;G.L. [Ter. Ed.] c. 279, § 37), or under an ordinance, for it is still law that a court cannot know without proof whether a......
  • Com. v. De Christoforo
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 7 Diciembre 1971
    ... . Page 100 . 277 N.E.2d 100 . 360 Mass. 531 . COMMONWEALTH" . v. . Benjamin A. DE CHRISTOFORO. . Supreme Judicial Court of Massachusetts, Middlesex. . Argued Jan. 4, 1971. . Decided Dec. 7, 1971. .     \xC2"... Am. Bar Assn. Canons of Professional Ethics, Canon 15. Commonwealth v. Mercier, 257 Mass. 353, 376--377, 153 N.E. 834. Commonwealth v. Cooper, 264 Mass. 368, 374, 162 N.E. 733. Greenberg v. United States, 280 F.2d 472, 474--475 (1st Cir.). Harris v. United States, 131 U.S.App.D.C. 105, ......
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