Fitzgerald v. Commonwealth

135 Mass. 266, 1883 Mass. LEXIS 68

• Court: Massachusetts Supreme Judicial Court
• Decided: June 18, 1883
• Status: Published

Opinion

C. Allen, J.

1. Neither of the objections taken to the form of the indictment will support a writ of error. No authority is cited which maintains the doctrine contended for in behalf of the plaintiff in error.

2. The judgment is not erroneous by reason of the verdict of not guilty on all the counts except the first three. The indictment contains six counts. The first three charge Fitzgerald, Norton and Stevens, all as principals, with having obtained from Charles Francis Adams certain checks and pieces of paper. The last three charge that Fitzgerald obtained from the same person certain checks and pieces of paper, described in the same manner with those mentioned in the first three counts; and that Norton and Stevens were accessories thereto, both before and after the fact. Only Fitzgerald was tried. The last three counts may have been intended, for all that we know to the contrary, to refer to different .checks and pieces of paper from those covered by the first three counts; Crowley v. Commonwealth, 11 Met. 575; or they may have been intended to contain charges against the accessories only, in which case it was proper to set forth in the first place a description of the offence of which the principal had been guilty, and to which they had been accessory. Commonwealth v. Glover, 111 Mass. 395. Commonwealth v. Cohen, 120 Mass. 198. Regina v. Wallace, 2 Moody C. C. 200. On either supposition, the acquittal on the later counts will not render erroneous the conviction on the earlier ones. This decision is not inconsistent with that in Pettes v. Commonwealth, 126 Mass. 242. Judgment affirmed.