Commonwealth vs. William Barker, 12 Cush. 186

Commonwealth vs. William Barker. In an indictment for murder with an axe, the time and place of the offence having been once sufficiently alleged, it is unnecessary to aver that the defendant did “ then and there ” strike and give a mortal blow, &c.

The defendant was tried before the chief justice, and justices Thomas and Merrick, and found guilty, on an indictment which alleged that the defendant, at Worcester, in the county of Worcester, on the 2d of January, 1853, in and upon his wife, Mary Barker, “ feloniously and wilfully, and of his malice aforethought, an assault did make; and that the said William Barker, with a certain axe, which he, the said William Barker, in both his hands then and there had and held, her, the said Mary Barker, feloniously and wilfully and of his malice aforethought, did strike, giving unto the said Mary Barker then and there, with the axe aforesaid, in and upon the left side of the head of her, the said Mary Barker, feloniously and wilfully and of his malice aforethought, one mortal wound,” &c.

The defendant moved in arrest of judgment for the following reason: “ That said indictment doth not allege any time or place, when or where the mortal blow was struck, which is in said indictment charged to have been struck by said defendant, and that the same is a material allegation in said indictment.” But the court overruled the motion. D. Foster, for the defendant, cited Cro. Eliz. 738; Cotton’s case, 2 Hale, 178; 2 Hawk. c. 23, § 88. R. Choate, (attorney-general,) for the commonwealth.