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107 Mass. 208

Commonwealth v. O'Brien

Massachusetts Supreme Judicial Court · decided 1871-03-15

Indictment, in Middlesex, with a single count, alleging that the defendants on October 2, 1870, at Lexington, “in and upon Alonzo L. Tuttle and Luke Tuttle did make an assault, and the said Alonzo L. and Luke did then and there beat, bruise, wound and ill treat, and other wrongs to the said Alonzo L. and Luke then and there did, against the peace,” &c. At the trial in the superior court, before Scudder, J., there was evidence tending to show that only one of the Tuttles was…

Relies on Jennings v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1871-03-15

How this case has been cited

Cited by 9 later decisions — most recently December 1943

9 state decisions

2018711880189019001910192019301940decided

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.

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Gray, J.

¶1It is now well settled, though it was once held otherwise, that a man who assaults two persons at the same time may be charged in a single count with the assault upon both as one breach of the peace. Rex v. Benfield, 2 Burr. 980, 983, 984. Anon. Lofft, 271. Regina v. Giddins, Car. & M. 634. Commonwealth v. McLaughlin, 12 Cush. 615.

¶2The indictment therefore duly charging an assault upon Alonzo and upon Luke, a conviction thereon is supported by proof of an assault upon either, within the elementary and universal principle of criminal law, that it is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified, although he is not shown to have been guilty of all that is charged against him. Commonwealth v. Griffin, 21 Pick. 523. Commonwealth v. Livermore, 4 Gray, 18. Jennings v. Commonwealth, 105 Mass. 586. Rex v. Carson, Russ. & Ry. 303.

¶3*209It was argued that this was like the case of an indictment for larceny of goods of A. and B., which would not be supported by proof of stealing the goods of A. only. But that is because such an indictment does not charge a theft of the property of A. and the property of B., but only of the joint property of both. The present case is more analogous to that of an indictment for the-larceny of the goods of A. and the goods of B., which is supported by proof of stealing the goods of either. In this case, as in that,, the substance of the crime charged is fully proved, although it is not shown to have affected so many persons as it is alleged to have done.

¶4Exceptions overruled.

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