Jennings v. Commonwealth

105 Mass. 586

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

Opinion

Gray, J.

The regularity and sufficiency of the indictment, verdict and sentence in this case are established by authority. An indictment for breaking and entering a building with intent to steal may, and usually does, include, in the same count which alleges the breaking and entering with intent to steal, a charge of an actual stealing in the building. Upon such a count, the jury may return either a general verdict, or a verdict of guilty of the larceny only. If the verdict is general, it is a conviction of the whole compound offence alleged, including both the breaking and entering with felonious intent and the larceny. Upon one count indeed not more than one punishment can be imposed, and therefore, if sentence is moved for upon a general verdict of guilty, it mil be given for the greater crime of breaking and entering only; and such a verdict is not deemed a distinct conviction for larceny, in computing the number of such convictions necessary to make the defendant punishable as a common and notorious thief. But the attorney for the Commonwealth may enter a nolle prosequi as to so much of the indictment as charges a breaking and entering; and if such a nolle prosequi is entered after a general verdict of guilty and before sentence, the defendant may be sentenced for the larceny. Commonwealth v. M’Monagle, 1 Mass. 517. Commonwealth v. Tuck, 20 Pick. 356. Commonwealth v. Hope, 22 Pick. 1. Kite v. Commonwealth, 11 Met. 581. Judgment affirmed.