
    Commonwealth vs. Francis J. McCarthy.
    Middlesex.
    Nov. 22,1887.
    Jan. 6, 1888.
    Devests & W. Allen, JJ., absent.
    An allegation in an indictment that the defendant “ wilfully did throw a certain missile, to wit, a stone,” at a street-railway car, is not sustained by proof that he threw only a billet of wood.
   W. Allen, J.

This is a complaint under § 206 of the Pub. Sts. c. 112, which provides that “ Whoever wilfully throws or shoots a missile at a ... . street-railway car,” shall be punished, &c. The complaint alleges that the defendant “wilfully did throw a certain missile, to wit, a stone,” at a street-railway car. The evidence tended to prove that the defendant threw a billet of wood at a car, but there was no evidence that he threw a stone. The exception is to the refusal of the court to rule that there was a variance between the allegation and the proof.

H. M. Winslow, for the defendant.

A. J. Waterman, Attorney General, for the Commonwealth.

The allegation is that the defendant'threw a stone. The words “to wit, a stone,” limit the general meaning of the word “ missile ” and are descriptive of it, and the whole shows that the only missile which the defendant was charged with throwing was a stone. Even if these words are unnecessary, they are material, and cannot be rejected, because they are descriptive of the identity of what is essential to the offence. Some description of the thing thrown is essential, and the description in the complaint is material, and must be proved as laid. Commonwealth v. Wellington, 7 Allen, 299. Commonwealth v. Hartwell, 128 Mass. 415. Commonwealth v. Moore, 130 Mass. 45. Commonwealth v. Luscomb, 130 Mass. 42. Commonwealth v. Tobias, 141 Mass. 129. 1 Greenl. Ev. § 65.

The rule, that, when an allegation is not descriptive of an of-fence charged, but a statement of the manner in which it was committed, it is sufficient to prove the substance of it, as when, in an indictment for murder, the death is alleged to have been caused by a blow with a stone, proof that it was caused by a blow with a stick is sufficient, does not apply to this case. Here the offence consists in throwing a missile, and words describing the missile are descriptive of the offence, and must be strictly proved. We think that the allegation that the missile thrown was a stone was not sustained by proof that it was a billet of wood. Exceptions sustained.  