Commonwealth v. Shedd

5 N.E. 254, 140 Mass. 451, 1886 Mass. LEXIS 65

Opinion

W. Allen, J.

The defendant was indicted, on the Pub. Sts. o. 210, § 8, for an attempt to commit burglary.

The indictment alleges that the defendant, a dwelling-house described, in the night-time, “ feloniously did attempt to break and enter, with intent the goods and chattels in said building, then and there being found, then and there feloniously to steal, take, and carry away, and in such attempt ” did certain acts, but “ was then and there intercepted and prevented in the execution of said offence.” The indictment is sufficient. Commonwealth v. Flynn, 3 Cush. 529. Commonwealth v. McLaughlin, 105 Mass. 460. It is argued that it is uncertain whether the words “ said offence” refer to the burglary, or to the larceny, or to the attempt to commit burglary. But there is no uncertainty. The intent to commit larceny is alleged only as part of the offence of burglary, which the defendant is alleged to have attempted to commit, and the burglary, and not the attempt to commit it, is certainly the offence in the execution of which the defendant is alleged to have been intei’cepted and prevented. The- motian to quash the indictment was rightly overruled.

There was evidence tending to prove that the defendant broke and opened the windows, which was the act alleged to have been done in the attempt to commit the burglary; and the jury might well have inferred, from the circumstances attending the act, and from the conduct and declarations of the defendant, that the act was done for the purpose of stealing from the building. The court could not properly have given the instruction prayed for, that, on the evidence, the jury would not be warranted -in finding a verdict of guilty.

Exceptions overruled.