Commonwealth v. McLaughlin

103 Mass. 435

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1869
• Status: Published

Opinion

Morton, J.

This case is within the provisions of the Gen. Sts. c. 172, § 12.

* It was proved at the trial, that, at the time when the offence was committed, the property stolen was in the actual possession of the person alleged to be the owner.

The case of Commonwealth v. Williams, 7 Gray, 337, merely decides that an indictment is good, which, in a case like this one, alleges the property to be in the husband. But under the statute above cited it is also sufficient to allege the property to be in the wife from whose actual possession it was stolen.

In Commonwealth v. Davis, 9 Cush. 283, cited by the defendant, the indictment was for cheating by false pretences. This not being one of the offences enumerated in Rev. Sts. c. 133, § 11, the common law rule applied to it, and it was necessary to allege the property to be in the husband. It .is not therefore inconsistent with this case.

• It may be observed, though not affecting the decision, that the provisions of the Gen. Sts. c. 172, § 12, are broader than the corresponding provisions of the Revised Statutes above referred to, extending the rule as to a variance to all offences in relation to or affecting, personal estate. Exceptions overruled.

“ In the prosecution of offences in relation to or affecting real or personal estate, it shall be sufficient, and shall not be deemed a variance, if it is proved on the trial, that, at the time when the offence was committed, either the actúa. »r constructive possession, or the general or special property, in the whole or any part .of such real or personal estate, was in the person or community al leged to be the owner th&reof.”