(Download) "Commonwealth v. Snow" by Supreme Judicial Court of Massachusetts " Book PDF Kindle ePub Free
eBook details
- Title: Commonwealth v. Snow
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 07, 1930
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 67 KB
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RUGG, C. J. This indictment charged that the defendant at a specified time and place 'did by a written communication maliciously threaten Nora Downs to do an injury to the person and property of said Nora Downs with intent thereby to extort money from the said Nora Downs.' There was evidence tending to show that the defendant secretly and anonymously caused a written communication to be made to Nora C. Downs, whereby a threat was made to her in effect that her child would be 'grabbed' and kidnapped and her place destroyed, if she did not put $500 in cash near a designated tree at a stated hour, and that for that sum 'cash you and the kid will be let alone. If you fail to pay or tell any one watch out,' together with other ancillary threats. The communication was signed 'Greenfield Mafia' and by a drawing of a 'black hand.' It was conceded that the Nora Downs named in the indictment is the same person as the Nora C. Downs to whom the communication was made, and that Beulah C. Downs, her minor daughter, is the child referred to in that communication. The defendant offered no evidence. He made a motion for a directed verdict in his favor (1) because of variance between the name Nora Downs in the indictment and the name Nora C. Downs shown by the evidence; and (2) because, under G. L. c. 265, § 25, it is not a crime maliciously to threaten one person with injury to another with intent to extort money from the person threatened. Another ground stated in the motion is not now argued and is treated as waived. This motion was overruled and the defendant excepted. At the common law and under our earlier decisions the variance between the name Nora Downs as charged and the name Nora C. Downs as proved would have been fatal. The middle name or initial is part of the name. Commonwealth v. McAvoy, 16 Gray, 235; Anderson v. Qualey, 216 Mass. 106, 109, 103 N.E. 90, and cases cited. It was held in Commonwealth v. Buckley, 145 Mass. 181, 13 N.E. 368, 369, that the 'name of the person threatened is necessary to the identity of the offense charged in the indictment, and therefore must be proved as set forth.' Subsequent to these decisions it was enacted that a 'defendant shall not be acquitted * * * by reason of an immaterial misnomer of a third party. * * *' G. L. c. 277, § 35, reenacting the substance of St. 1899, c. 409, § 4. This 'statute is designed to avoid the possibility of reversible error, not going to the merits of the accusation, where in fact the defendant does not suffer prejudice. Senate Doc. of 1899, No. 234. * * * The statute is remedial and should be construed with reasonable liberality and so as to give effect to all its provisions. The defendant is safeguarded by his right to a bill of particulars and the power and obligation of the Judge to see that he suffers no actual harm.' Commonwealth v. Cabot, 241 Mass. 131, 144, 135 N.E. 465. Under this statute the requirement of exact correspondence between the allegation in the indictment and the proof at the trial of the name of a third person is relaxed. The defendant is still protected against material misnomers of third persons. It is sufficient now that the defendant was informed of the charge and suffered no harm in his defense, if enough appears to protect him against another prosecution for the same offense. See Bennett v. United States, 227 U. S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531; Commonwealth v. Bannon, 254 Mass. 320, 150 N.E. 7; Commonwealth v. Baxter (Mass.) 166 N.E. 742; Bartkus v. United States (C. C. A.) 21 F.(2d) 425, 427; King v. United States (C. C. A.) 25 F.(2d) 242, 245; Harris v. People, 64 N. Y. 148, 154. The case at bar, in view of all the circumstances, falls within the terms of the statute and the defendant was not entitled to an acquittal because of variance.