Commonwealth v. Dean
Massachusetts Supreme Judicial Court
Indictment against Henry Dean, Michael Lafferty, John. Finnegan, and four other men, for rape upon the person of Susan Emerald, on November 19, 1871. At the trial in the superior court in Suffolk, before Brigham, C. J., the district attorney indorsed this entry on the indictment: “ I will no further prosecution as to so much of this indictment as charges rape.”
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Indictment against Henry Dean, Michael Lafferty, John. Finnegan, and four other men, for rape upon the person of Susan Emerald, on November 19, 1871. At the trial in the superior court in Suffolk, before Brigham, C. J., the district attorney indorsed this entry on the indictment: “ I will no further prosecution as to so much of this indictment as charges rape.” The defendants then objected that they could not be lawfully held to answer further to the indictment; but the judge overruled the objection, and ordered the trial to proceed as for a simple assault. The Commonwealth introduced…
1Opinion of the CourtColt, J.
An assault is necessarily charged substantially, in an indictment for rape. Commonwealth v. Drum, 19 Pick. 479. And under the Gen. Sts. e. 172, § 16, a person indicted for the latter offence, if convicted by the jury of the former, although it constitutes but' part of the offence charged, may be adjudged guilty and sentenced accordingly. The defendants were so convicted in this case.
It is insisted that this conviction was erroneous, because, after the entry of a nolle prosequi, which appears on the back of the indictment in these words, “ I will no further prosecution as to so much of this…
2Cases cited2 opinions
- Morey v. CommonwealthMassachusetts Supreme Judicial Court · 1871
- Commonwealth v. BakemanMassachusetts Supreme Judicial Court · 1870
3Cited by46 opinions
- Commonwealth v. McCanMassachusetts Supreme Judicial Court · 1931
- Commonwealth v. GreenbergMassachusetts Supreme Judicial Court · 1959
- Ward v. StateCourt of Appeals of Maryland · 1981
- Commonwealth v. DiStasioMassachusetts Supreme Judicial Court · 1936
- Commonwealth v. FarrellMassachusetts Supreme Judicial Court · 1948
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