Commonwealth v. McAfee , 108 Mass. 458 ( 1871 )

Chapman, C. J.

The motion to quash the indictment was not insisted on in the argument, and the indictment appears to be sufficient. But it is contended that the cause of death is not truly stated, and that the evidence does not support the averment The allegation is, that the defendant did strike, kick, beat, bruise and wound the deceased in and upon her head and body, and throw her upon the floor. The proof was, that he struck her with his open hand upon her cheek and about the temple, and she fell upon the floor and did not speak afterwards. Medical witnesses attributed her death to falling on a chair most probably, or to some external force, and believed that concussion of the brain or effusion of blood on the brain had been produced.

The defendant’s counsel cites Kelly's case, 1 Lewin, 193, where it was held that, when a blow with the fist was stated as the cause of death, and it appeared that in consequence of the blow the deceased fell upon a piece of brick and was killed by it, the cause of death was not truly stated; also Thompson's case, Ib. 194, where the allegation was of a killing by a beating on the head, and it appeared that in consequence of the beating the deceased fell upon the floor and was killed by it, and it was held that the cause of death was not truly stated. If in this case the beating only had been stated, those cases-would be in Doint. But here the throwing upon the floor is also stated; and the intervention of a chair standing upon the floor, or of some other hard substance, would make no material variation. The case cornea within the rule stated in Commonwealth v. Woodward, 102 Mass. 155 ; the killing is set forth with as much particularity as is necessary for the defendant in order to prepare his defence. The allegation is as nearly correspondent with the proof as in The Queen v. McIntyre, 2 Cox Crim. Cas. 379; Rex v. Waters, 7 C. & P. 250 ; Commonwealth v. Stafford, 12 Cush. 619; Commonwealth v. Fox, 7 Gray, 585.

The beating of the defendant’s wife was unlawful. In Pearman v. Pearman, 1 Swab. & Tristr. 601, it is said that there is no law authorizing a man to beat his drunken wife. Beating a wife is held to be unlawful in New York. People v. Winters, 2 Parker Crim. Cas. 10. Perry v. Perry, 2 Paige, 501, 503. There is no authority in its favor in this Commonwealth. Beating or striking a wife violently with the open hand is not one of the rights conferred on a husband by the marriage, even if the wife be drunk or insolent. The blows being illegal, the defendant was at least guilty of manslaughter. Commonwealth v. Fox, 7 Gray, 585. Exceptions overruled.