Commonwealth v. McCarthy

• Decision Date: 29 January 1876
• Citation: 119 Mass. 354
• Parties: Commonwealth v. Timothy J. McCarthy
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 354

Commonwealth v. Timothy J. McCarthy

Supreme Court of Massachusetts

January 29, 1876

Argued November 3, 1875

Exceptions overruled.

E. T Burley, for the defendant.

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

Endicott J. Colt, Morton & Lord, JJ., absent.

OPINION

Endicott

The defendant was indicted for the malicious burning of a building belonging to one Gleason. The indictment contained three counts, charging the same offence to have been committed on August 24, September 6 and 10, 1875 respectively. Before the trial began, the government elected to proceed on the third count only.

The evidence offered by the government that the defendant, on August 24th and September 6th, set fire to a shed ten feet distant from the building, and connected therewith by a flight of stairs, was competent on the question of the intent with which he burned the same building on September 10th, for which offence he was tried. The instructions to the jury properly limited the effect of the evidence to the single purpose for which it was competent. Commonwealth v. Merriam, 14 Pick. 518. Commonwealth v. Eastman, 1 Cush. 189. Commonwealth v. Tuckerman, 10 Gray 173, 200. Commonwealth v. Shepard, 1 Allen 575. Commonwealth v. Choate, 105 Mass. 451. Regina v. Dossett, 2 C. & K. 306. The government was not precluded from proving that the building was burnt with a wilful intent, because the defendant conceded that fact before the trial began, and stated that the only question he desired to submit to the jury was whether he set the fire. Priest v. Groton, 103 Mass. 530.

The government contended that the motive of the defendant in setting the fire was to destroy his stock of goods, which was insured for more than its value. This value, on September 10, was about $ 500. Evidence was introduced by the government that on that date the defendant had insurance on the stock to the amount of two thousand dollars. To meet this evidence, the defendant put in office copies of two mortgages on the goods, dated January 10 and 22, 1875, respectively; one to secure the payment of a note of $ 1000, and the other a note of $ 700, both signed by the defendant. No other evidence was introduced respecting the mortgages.

Several instructions to the jury were requested by the defendant in regard to these mortgages and the effect to be given to them. The court gave the instructions, but added certain explanations...