Commonwealth v. Fenno

Decision Date18 October 1878
Citation125 Mass. 387
PartiesCommonwealth v. Henry M. Fenno
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
Argued November 26, 1877; November 27, 1877

Middlesex. Indictment charging that the defendant, on November 29, 1876 at Somerville, "in and upon one James B. Hardy, with a certain dangerous weapon, to wit, with a pistol then and there loaded with powder and a leaden ball, with which dangerous weapon the said Henry M. Fenno was then and there armed, feloniously, wilfully and of his malice aforethought did make an assault, with intent the said James B. Hardy then and there, with the pistol aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder."

In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment, assigning the following reasons therefor: "1. Because it is not alleged therein that the pistol, alleged to be a dangerous weapon, was capped or capable of being discharged. 2. Because there is no averment therein that the defendant aimed said pistol or discharged it at or towards any person. 3. Because the indictment is generally uncertain and void in law." Putnam, J., overruled the motion and the defendant excepted.

At the trial, the government introduced evidence tending to prove that the defendant was armed with a large sized revolving pistol, loaded with powder and ball, which was made to be discharged by means of a hammer striking upon a metallic cartridge containing the powder and ball, the end of which is explosive and ignites the powder which throws out the ball and that the defendant aimed and discharged the pistol at Hardy, within effective range of a pistol of that size, the bullets passing near the head of Hardy, so that he heard the whiz of one of them, but at such a distance that no assault could have been made upon him by striking him with the pistol itself, or by using it in any other way than by discharging it as a firearm.

The defendant requested the judge to rule that the government had failed to prove the charge alleged in the indictment by reason of variance; but the judge refused so to rule, and instructed the jury that the evidence, if they believed it was evidence of an assault with a pistol upon Hardy.

The jury returned a verdict of guilty; and the defendant alleged exceptions.

Exceptions overruled.

J. H Bradley, for the defendant. 1. The motion to quash the indictment should have been granted, for the following reasons: Because the indictment does not allege that the pistol was capped or capable of being discharged. 3 Greenl. Ev. § 59, and cases cited. Because it does not allege that the defendant aimed the pistol or discharged it at or towards any person, or used it as a firearm; or so describe the assault as to apprise the defendant of the nature of the offence for which he was to be tried. Blake v. Barnard, 9 Car. & P. 626. Regina v. Baker, 1 Car. & K. 254. Regina v. James, 1 Car. & K. 530. Commonwealth v. Creed, 8 Gray 387. Commonwealth v. Lang, 10 Gray 11. Commonwealth v. White, 110 Mass. 407. Commonwealth v. O'Brien, 119 Mass. 342. Beasley v. State, 18 Ala. 535. Trexler v. State, 19 Ala. 21. Tarver v. State, 43 Ala. 354. State v. Johnston, 11 Tex. 22. 1 Archbold Crim. Pract. (8th Am. ed.) 909 note. Because it does not appear, from the description of the weapon or its use, that it is a dangerous weapon described in the statute, and the government is as much bound by the description as if a similar specification had been ordered by the court. Commonwealth v. Snelling, 15 Pick. 321. Commonwealth v. Giles, 1 Gray 466. All the material facts and circumstances constituting the offence should have been set forth, that it may appear whether it was under the Gen. Sts. c. 160, § 20, or under § 23. Commonwealth v. Strain, 10 Met. 521. Johnson v. State, 14 Ga. 55.

2. The instructions asked for should have been given. The indictment only charges an assault with the pistol used as a club, while the evidence tended to prove an assault by shooting with the pistol.

W. C Loring, Assistant Attorney General, (C. R. Train, Attorney General, with him,) for the Commonwealth. 1. The motion to quash was rightly overruled. The allegation, "the defendant with a certain dangerous weapon, to wit, with a pistol loaded with powder and a leaden bullet, did make an assault," was a sufficient description of the means with which the assault was committed. Commonwealth v. Creed, 8 Gray...

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3 cases
  • Keesier v. State
    • United States
    • Indiana Supreme Court
    • 21 Febrero 1900
    ...as a gun, a loaded pistol, within carrying distance, is a deadly weapon. State v. Swann, 65 N. C. 330;Com. v. White, 110 Mass. 407;Com. v. Fenno, 125 Mass. 387;State v. Painter, 67 Mo. 84;Prior v. State, 41 Ga. 155. Besides, there was evidence that the appellant drew the revolver, and with ......
  • Keesier v. State
    • United States
    • Indiana Supreme Court
    • 21 Febrero 1900
    ...pistol, within carrying distance, is a deadly weapon. State v. Swann, 65 N.C. 330; Commonwealth v. White, 110 Mass. 407; Commonwealth v. Fenno, 125 Mass. 387; State v. Painter, 67 Mo. 84; v. State, 41 Ga. 155. Besides, there was evidence that the appellant drew the revolver, and with the de......
  • Com. v. Clarke
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 1 Enero 1895
    ...the words "kill and murder." In the particulars objected to, the indictment corresponds, in form, with that which was approved in Com. v. Fenno, 125 Mass. 387. defendant was acquitted of a part of the charge contained in the indictment, and was properly convicted of the residue, which was a......

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