
    Commonwealth vs. Emma Clarke.
    Suffolk.
    November 26, 1894.
    January 1, 1895.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Barker, JJ.
    
      Indictment not Bad for Duplicity or Repugnancy— Acquittal of Part of Charge and Conviction of the Residue.
    
    An indictment which charges an assault with a dangerous weapon, and, by way o further aggravation, that it was with an intent to “ kill and murder,” is not ha. for duplicity or repugnancy; and the defendant may be acquitted of a part oi the charge and convicted of the residue.
    Indictment, charging the defendant with assault with a dangerous weapon, with intent to murder. At the trial in the Superior Court, before Fessenden, J., the jury returned a verdict of guilty of an assault with a dangerous weapon, and not guilty of the residue of the indictment; and the defendant alleged exceptions, the nature of which appears in the opinion.
    
      P. J. Casey, for the defendant.
    
      F. F. Hurd, First Assistant District Attorney, for the Commonwealth.
   Knowlton, J.

The indictment charges an aggravated assault and battery, that is, an assault with a dangerous weapon, and charges, by way of further aggravation, that it was with an intent to kill and murder, thus bringing the crime within the provisions of Pub., Sts. c. 202, § 20. The defendant contends that in the use of the words “kill and murder” the indictment is double, charging two distinct offences, namely, an assault with an intent to commit the crime of manslaughter, and an assault with an intent to commit the crime of murder. But there is no good ground for this contention. The usual form of charging murder has always been to use in conclusion the words “kill and murder.” In the particulars objected to, the indictment corresponds in form with that which was approved in Commonwealth v. Fenno, 125 Mass. 387.

The defendant was acquitted of a part of the charge contained in the indictment, and was properly convicted of the residue, which was also substantially and properly charged in the indictment. Pub. Sts. c. 214, § 18. Commonwealth v. Drum, 19 Pick. 479. Commonwealth v. Squires, 97 Mass. 59. Commonwealth v. Dean, 109 Mass. 349. Commonwealth v. McGrath, 115 Mass. 150. Exceptions overruled.  