Commonwealth v. Clarke

39 N.E. 280, 162 Mass. 495, 1895 Mass. LEXIS 309

• Court: Massachusetts Supreme Judicial Court
• Decided: January 1, 1895
• Status: Published

Opinion

Knowlton, J.

The indictment charges an aggravated assault and battery, that is, an assault with a dangerous weapon, and charges, by way of further aggravation, that it was with an intent to kill and murder, thus bringing the crime within the provisions of Pub., Sts. c. 202, § 20. The defendant contends that in the use of the words “kill and murder” the indictment is double, charging two distinct offences, namely, an assault with an intent to commit the crime of manslaughter, and an assault with an intent to commit the crime of murder. But there is no good ground for this contention. The usual form of charging murder has always been to use in conclusion the words “kill and murder.” In the particulars objected to, the indictment corresponds in form with that which was approved in Commonwealth v. Fenno, 125 Mass. 387.

The defendant was acquitted of a part of the charge contained in the indictment, and was properly convicted of the residue, which was also substantially and properly charged in the indictment. Pub. Sts. c. 214, § 18. Commonwealth v. Drum, 19 Pick. 479. Commonwealth v. Squires, 97 Mass. 59. Commonwealth v. Dean, 109 Mass. 349. Commonwealth v. McGrath, 115 Mass. 150. Exceptions overruled.