The second count having been quashed, we have before us only the objections to the first and third counts.
The defendants contend that each count is bad for duplicity, and that a verdict of guilty on the two counts involves an inconsistency.
By Pub. Sts. c. 202, § 26, “ Whoever with intent to commit larceny . . . confines, maims, injures, or wounds, ... or puts in fear any person, for the purpose of stealing from a building,” is made punishable.
The first count sufficiently charges the above offence, though with unnecessary averments as to the details of the intent and of the acts done, and without accurately following the language of the statute; but it is not open to the objection of duplicity, although all the elements of another offence, viz. assault and battery, are contained therein. Commonwealth v. Harney, 10 Met. 422. Commonwealth v. Brown, 14 Gray, 419, 430, 431. Jennings v. Commonwealth, 105 Mass. 586. Commonwealth v. Thompson, 116 Mass. 346. Commonwealth v. Barling, 129 Mass. 112. 1 Bish. Crim. Proc. §§ 434-439.
The third count appears to be founded upon the same section of the statutes, but alleges an “ assault,” which word is not found in that section, and adds particulars substantially as in the first count. Neither of the two counts follows the statute with as much exactness as is desirable, but each contains enough to stand as a valid charge under § 26, and the unnecessary details do not render it bad. No objection was made to the instructions to the jury.
The various acts charged in both counts are all consistent with one another, so that there is no inconsistency in the verdict of guilty on both counts; the objections not existing which were found in Commonwealth v. Fitchburg Railroad, 120 Mass. 372, 381, and in Commonwealth v. Boston & Maine Railroad, 133 Mass. 383, 391, 392.
Exceptions overruled.