Commonwealth v. Sherman

105 Mass. 169

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Wells, J.

TMs Mdictment is for an attempt to commit the crime of larceny from the person. The statute pumshes such an attempt when the offender “ does any act towards the comnffssion of such offence,” but fails therein.

The offence attempted is sufficiently set forth, according to the decisions m Commonwealth v. McDonald, 5 Cush. 365, and Commonwealth v. Bonner, 97 Mass. 587. It was also held in McDonald's case, that neither allegation nor proof was necessary, that there was any property, capable of being stolen, in the pocket or upon the person of the one against whom the attempt was made.

The objection, urged in this case, is, that it is not alleged that the pocket, into which the defendant thrust his hand, was upon the person of Franklin; and so it is not shown that any act was done “ towards the commission ” of the offence of larceny from the person. But the same objection was taken in Bonner's ease, without avail. The allegation there was, that the defendant put his hand “ upon the dress near and into the pocket of said woman, without her knowledge.” Objection was distinctly made to the indictment as being “ equivocal, and insufficient in its description of the alleged overt act.” The language of the court, in the opinion, is: “ The description of the offence in the indictment is sufficiently precise and unequivocal; ” showing that the point was considered and adjudicated.

When an act is said to be done to the dress of a person, to the natural and ordinary understanding it would indicate the dress worn by such person. And so “the pocket of Andrew Franklin ” naturally indicates a pocket in the clothing worn by him. This implication is strengthened by the preceding allegation, that it was done in attempting to steal from his person property alleged to be at the time upon his person.

A greater degree of circumstantial precision might be commendable, in' criminal pleading. But we do not think this allegation is so lacking in precision as to make it uncertain what was intended to be charged. Exceptions overruled.