Commonwealth v. McLaughlin , 105 Mass. 460 ( 1870 )

Ames, J.

It has been decided that an indictment under the Gen. Sts. c. 161, § 80, is sufficient if it sets forth the offence in the words of the statute. Those words import all that is necessary to a legal description of the offence. The word “ wilfully,” as used in the statute, means intentionally; and the word “ maliciously ” imports a criminal motive, intent or purpose. Commonwealth v. Brooks, 9 Gray, 299. It is impossible that an attempt “ unlawfully, wilfully and maliciously ” to do a criminal act can itself be otherwise than unlawful, wilful and malicious. To attempt to commit a wilful and malicious crime imports ex vi termini an intent to commit that crime. The attempt includes the intent.

The criminality implied in the charge against the defendants consists in the character of the crime which they attempted to commit, and not in the overt acts merely. It is not necessary that the overt acts should be otherwise charged than as acts towards the commission of the offence, with such a description of them as to render it apparent that they were in pursuance of the guilty purpose. It is sufficiently charged in the indictment that in the attempt, which is equivalent to saying “ with the intent,” to commit the crime, they prepared the poison, and with it in their possession entered the stable and climbed into the stall where the horse was, with intent then and there to administer, &c. We think the indictment sufficiently excludes the possibility of any innocent intent on the defendants’ part, in any of the acts charged against them. .

The indictment charges that the defendants “ filled and saturated ” potatoes with croton oil, intending to give them to the horse to eat, and the evidence, although it proved that the poison was contained in the potatoes, showed that they were not “ saturated ” with it, in the literal sense of the word. But this sort of variance does not appear to us to be substantial or material. Even in trials for murder, it has been held that a misdescription of the weapon with which the fatal wound was given is unimportant, if the mode of death proved agrees in substance with that charged; as for instance, in the case of a wound alleged to be with a sword, but shown to have been made with an axe; or a blow described as made with a staff, shown to have been with a stone; “ and the same, if the death be laid to be by one sort of poisoning, and in truth it be by another.” 1 East P. C. 341. Commonwealth v. Macloon, 101 Mass. 1. Rex v. Phillips, 3 Camp. 74. Exceptions overruled.