Commonwealth v. Flagg

135 Mass. 545, 1883 Mass. LEXIS 131

Opinion

Morton, C. J.

It is an indictable offence at common law for one to counsel and solicit another to commit a felony or other aggravated offence, although the solicitation is of no effect, and the crime counselled is not in fact committed. Commonwealth v. Willard, 22 Pick. 476. Rex v. Higgins, 2 East, 5. Rex v. Phillips, 6 East, 464. Regina v. Ransford, 13 Cox C. C. 9. State v. Avery, 7 Conn. 266. The first and second counts of the indictment in the case at bar allege with sufficient certainty that the defendant solicited one Thomas Stafford to burn the barn of one Ellen H. Clark, and set out an offence at common law.

The evidence clearly tended to support these counts, and therefore the court properly refused to quash the indictment, and also properly refused the defendant’s request for an instruction that, upon the evidence, the jury would not be authorized to convict him upon either count of the indictment.

It is not necessary to consider whether the evidence at the trial proved the offences charged in the third and fourth counts of the indictment. The jury were instructed that they could not convict upon them, unless they found that the defendant paid the money to Stafford to induce him to fire the barn. This supported and proved the first and second counts, and therefore a general verdict of guilty was properly rendered, as the indictment alleges that the different counts are different descriptions of the same act. Upon such a verdict, a judgment is a conviction of but a single offence, and is deemed to be upon that count which is good, and to which the evidence is applicable. Commonwealth v. Fitchburg Railroad, 120 Mass. 372. Commonwealth v. Boston & Maine Railroad, 133 Mass. 383. Commonwealth v. Nichols, 134 Mass. 531.

Judgment on the verdict.