103 MASS 435 - Commonwealth v. McLaughlin

How this case has been cited

Cited by 5 later decisions — most recently December 1964

1 district · 4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Morton, J.

¶1This case is within the provisions of the Gen. Sts. c. 172, § 12.* It was proved at the trial, that, at the time *436when the offence was committed, the property stolen was in the actual possession of the person alleged to be the owner.

¶2The case of Commonwealth v. Williams, 7 Gray, 337, merely decides that an indictment is good, which, in a case like this one, alleges the property to be in the husband. But under the statute above cited it is also sufficient to allege the property to be in the wife from whose actual possession it was stolen.

¶3In Commonwealth v. Davis, 9 Cush. 283, cited by the defendant, the indictment was for cheating by false pretences. This not being one of the offences enumerated in Rev. Sts. c. 133, § 11, the common law rule applied to it, and it was necessary to allege the property to be in the husband. It .is not therefore inconsistent with this case.

¶4• It may be observed, though not affecting the decision, that the provisions of the Gen. Sts. c. 172, § 12, are broader than the corresponding provisions of the Revised Statutes above referred to, extending the rule as to a variance to all offences in relation to or affecting, personal estate. Exceptions overruled.

¶5 “ In the prosecution of offences in relation to or affecting real or personal estate, it shall be sufficient, and shall not be deemed a variance, if it is proved *436on the trial, that, at the time when the offence was committed, either the actúa. »r constructive possession, or the general or special property, in the whole or any part .of such real or personal estate, was in the person or community al leged to be the owner th&reof.”