Commonwealth v. Whalen

131 Mass. 419, 1881 Mass. LEXIS 272

Opinion

Field, J.

Assuming that, from the form of the indictment, it was necessary for the government to prove that the building into which the defendants broke and entered, “ with intent then and there in said store to commit the crime of larceny,” was a store, within the ordinary meaning of that word- as used in this Commonwealth, we think that there was evidence to he submitted to the jury that the building was a place in which merchandise was kept for sale; and that this is one of the common significations of the word “ store ” in this country. Commonwealth v. Annis, 15 Gray, 197. Barth v. State, 18 Conn. 432. State v. Canney, 19 N. H. 135.

We understand that the court, in the instruction to the jury to which exception was taken, only ruled that the defendants were not entitled to an acquittal on the ground that, as a matter of law, there was a variance between the allegations contained in the indictment and the proof. It does not appear from the exceptions that all questions of fact were not properly left to the jury. Exceptions overruled.