Commonwealth v. Lamb , 67 Mass. 493 ( 1854 )

Dewey, J.

The principal objection taken to the sufficiency of this indictment is the want of a more particular averment as to the locality of the barn and outhouse alleged to have been set on fire by the defendant. The omission of the words “ there situate,” words usually found in indictments for arson and burglary, following the description of the property alleged to have been set on fire, is the ground of this objection.

An indictment containing these words would undoubtedly more fully correspond with • the precedents in similar cases. But, in the opinion of the court, the omission of these words is not fatal to the indictment. The offence is here sufficiently charged as to its locality, by the previous averment, “that Philip Lamb, of Palmer in said county, at Palmer aforesaid,” &c., taken in connection with the further averment, “ and the said barn and outhouse did then and there voluntarily burn and consume.” Where the place is material, the place alleged in the venue, taken in connection with the allegation that the defendant then and there did the act, sufficiently designate the locality of the buildings set on fire. It is to be taken in the present case to be equivalent to an allegation that the buildings were situate in Palmer.

This view of the sufficiency of such an indictment seems to be directly sustained by the case of Rex v. Napper, 1 Mood. C. C. 44 That case was reserved for the opinion of all the judges, who held the indictment sufficient. The principle is, that if it is not expressly stated where the building is situated, it shall be taken to be situated at the place named in the indictment by way of venue. 1 Russ. on Crimes, (7th Amer. ed.) 827.

The further objection now raised to the indictment is, that il erroneously describes the offence, as an offence committed in the night time, because it states a period of time at variance with the St. of 1847, c. 13, defining the time of night time in reference to criminal offences to be “ the time between one hour after the sunsetting on one day and one hour before sunrising on the next day.”

This error in the indictment would be fatal to sustaining the. indictment, as charging the burning a building in the night time. But that is immaterial in the present case, as the punishment authorized by the statute, for burning a bam or outhouse, either in the day or night time, is the same, and found in the same section of Rev. Sts. c. 126, § 5.

Nor is it any sufficient ground for arresting judgment, that the indictment charges a burning of “ a certain barn and an outhouse thereto adjoining,” and does not separately charge the burning of each. Motions in arrest overruled.