Commonwealth v. Barlow
Massachusetts Supreme Judicial Court
The defendant and two other persons were indicted on the fifth section of the statute of 1804, c. 123, for assaulting and shooting at one Moses Robinson, with the intent to murder him. The defendant, having been apprehended, was tried before the Chief Justice during the present term, and was convicted. After the verdict, he moved in arrest of judgment, because the offence was not charged to have been committed feloniously, as it ought to have been.
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The defendant and two other persons were indicted on the fifth section of the statute of 1804, c. 123, for assaulting and shooting at one Moses Robinson, with the intent to murder him. The defendant, having been apprehended, was tried before the Chief Justice during the present term, and was convicted. After the verdict, he moved in arrest of judgment, because the offence was not charged to have been committed feloniously, as it ought to have been. This motion was shortly argued by Wilde for the prisoner, and the Solicitor-General for the government, before the Chief Justice, and Sewall,…
1Opinion of the Court
The Court
observed that, anciently, an attempt to commit murder was held to be a felony at common law, according to the maxim, Voluntas pro facto reputatur; but that when Staundforde wrote, and ever since, the attempt only has not been considered as a felony, but as a misdemeanor highly aggravated. (1) The indictment, therefore, properly described the offence as a trespass, unless it was made felony by the statute on which it was drawn. By the words of this statute, every person who shall, with a dangerous weapon, and with an intention to murder, assault another, shall, upon conviction, be…
2Cited by12 opinions
- Commonwealth v. McCanMassachusetts Supreme Judicial Court · 1931
- People v. KatzNew York Court of Appeals · 1943
- Commonwealth v. DemboskiMassachusetts Supreme Judicial Court · 1933
- State v. DanforthSupreme Court of Connecticut · 1819
- Whitney v. CommonwealthMassachusetts Supreme Judicial Court · 1958
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