Commonwealth v. Hodgkins

Lathrop, J. The contention of the defendant is that the word “ lobsters ” in the complaint means by necessary intendment “ live lobsters,” and that, as the lobsters which he had in his possession were dead, there is a variance between the complaint and the proof. In Commonwealth v. Beaman, 8 Gray, 497, the rule of law in cases of larceny is thus stated by Mr. Justice Metcalf: “An indictment for a larceny of live animals need not state them to be alive, because the law will presume them to be so, unless the contrary be stated ; but' if, when stolen, the animals were dead, that fact must be stated; for, as the law would otherwise presume them to be alive, the variance would be fatal.” There is of course a great difference between the larceny of a live animal and that of a dead one, and the penalty may be much greater in the one case than in the other; but we are of opinion that the rule above stated has no application to the case at bar. The St. of 1887, c. 814, § 1, is intended for the protection of, lobsters, and makes the selling, offering for sale, or having in possession a lobster less than a certain length a punishable offence, the penalty being five dollars for each lobster. The statute is broad enough to include dead lobsters as well as live lobsters. See Commonwealth v. Hall, 128 Mass. 410; Commonwealth v. Young, 165 Mass. 396. The offence is created by statute, and it is the general rule [199] that it is sufficient to charge the offence in the words of the statute. An offence like the one complained of in this case comes within the general rule. Commonwealth v. Prescott, 151 Mass. 60. Exceptions overruled.