Commonwealth v. Hayden

C. Allen, J. The indictment contains but one count, and charges the burning of the dwelling-house of one Melvin Thayer. It appearing at the trial that the building in question had never been occupied as a dwelling-house by said Thayer, the court (in accordance with the decision in Commonwealth v. Barney, 10 Cush. 478) instructed the jury that it was not his dwelling-house, as alleged, but allowed them to convict the defendant of burning a building of said Thayer other than a dwelling-house, under the Pub. Sts. c. 203, § 4. We are of opinion that this conviction cannot be supported. It was necessary to aver what was burned, and an averment that a dwelling-house was burned must be proved as laid. The statutory offence of burning a dwelling-house does not include within itself the offence of burning a building which is not a dwelling-house. The description of what was burned is essential to fix the identity of the offence, and no part of it can be rejected as surplusage. 1 Greenl. Ev. §§ 58, 65. 3 Greenl. Ev. § 51. Commonwealth v. Wellington, 7 Allen, 299. Commonwealth v. Hartwell, 128 Mass. 415, 419. Commonwealth v. Tobias, 141 Mass. 129. Commonwealth v. Buckley, 145 Mass. 181. Commonwealth v. McCarthy, 145 Mass. 575. See also numerous cases collected in 1 Bish. Crim. Proc. (3d ed.) §§ 485, 486. It is no doubt true that the Pub. Sts. c. 203, § 4, cover the offence which the evidence tended to prove. The difficulty is,' that there was no count in [334] the indictment adapted to that offence. The charge was limited to burning a building of the particular kind described, and did not include burning one of any other kind. Exceptions sustained.