Kendall v. Mann.

act, and that he agreed orally to repay the defendant whatever sum the defendant might pay for the land. This implies that the defendant was to advance the money as his own, and to give the plaintiff a right to repurchase on being repaid by the plaintiff, nearly or quite as clearly as it implies that he was to lend it to the plaintiff. At least it is equivocal, when we con sider how unusual it is for men to lend such sums of money and take no written obligation for repayment; and it lacks that clearness which the plaintiff should establish in order to raise a resulting trust.

Whatever agreement was made afterwards would not raise a resulting trust, though followed by a conveyance of the plaintiff's right of homestead and his wife's right of dower. If the plaintiff can establish his case, it must be on the ground that there was an express trust.

Verdict to stand, and cause to stand for plaintiff's motion to amend his bill according to the report.

* Another case involving the same principle was argued at the same term.

SAMUEL DAVIS vs. JOHN W. Wetherell.

CONTRACT to recover money received by the defendant, upon the sale of an equity of redemption of land purchased by him of the plaintiff's assignees in insolvency, in which the plaintiff claimed that a resulting trust existed in favor of himself. At the trial in this court, Gray, J. directed a verdict for the defendant, upon facts which sufficiently appear in the opinion. The plaintiff alleged exceptions.

T. L. Nelson, for the plaintiff.

P. E. Aldrich, for the defendant.

CHAPMAN, J. The plaintiff contends that the defendant purchased the equity of redemption of the plaintiff's assignees in insolvency in trust for the plaintiff; that he violated the trust by selling the land, and that the plaintiff is entitled to maintain this action to recover the balance of the avails of the sale over and above the amount of the incumbrances which existed upon the land. The first fact to be proved is the existence of the trust. The plaintiff does not allege that any trust was declared in writing, but he offered at the trial his own testimony for the purpose of establishing by oral evidence a resulting trust. The only fact to which he testifies as occurring before the sale is a conversation between him and the defendant. In this conversation the plaintiff went no further than to say he should be glad to have the defendant buy the land, provided the

Commonwealth v. Mowry.

COMMONWEALTH US. GEORGE L. MOWRY.

In an indictment under Gen. Sts. c. 160, § 22, for robbery, being armed with a dangerous weapon, and wounding or striking the person robbed, it is not necessary to aver of prove that the wounding or striking was done with the dangerous weapon.

It is a sufficient averment of striking, under the above statute, to set forth that the defendant, being so armed, "the said A., in and upon the face and head of the said A., then and there did strike and wound."

INDICTMENT setting forth that George L. Mowry, on a day and at a place named, “in and upon one John G. Lewis an assault did make, and the said John G. Lewis in bodily fear and danger of his life then and there did put, and sundry bank bills, amounting to twenty-five hundred dollars and of the value of twenty-five hundred dollars, of the moneys and property of the said John G. Lewis, from the person and against the will of the said John G. Lewis then and there and by force and violence

plaintiff could have the privilege of redeeming it; and the only promise he represents the defendant as making is, that "he would see what he could do." There is nothing in all this tending to establish a resulting trust. In order to establish such trust, the plaintiff must prove that he paid the purchase money, or, if the defendant paid it, that he did so in behalf of the plaintiff. If the defendant furnished the money, it should clearly appear that he had lent it to the plaintiff, so as to make it the plaintiff's money when it was paid. Nothing of this kind is stated. This subject is discussed in Kendall v. Mann.

The resulting trust must arise at the time of the purchase, and cannot be created afterwards. 2 Washburn on Real Prop. 178. Therefore none of the other conversations or facts, all of which occurred some time after the sale, have any tendency to establish such a trust. If they tend to prove any trust, it was an express trust, such as can only be created by an instrument in writing. But in reality the plaintiff's testimony proves nothing more than that the defendant permitted the plaintiff to enjoy the privilege of continuing to occupy the land for a time, as he had occupied it before, upon payment of the interest accruing on the mortgage and the taxes, and also agreed that he might have the privilege of redeeming the land; but the plaintiff did not redeem it; and after the defendant thought a reasonable time had elapsed he sold it. The agreement as to the redemption was within the statute of frauds.

The plaintiff's testimony as to his intentions at the time of the first conversation was properly excluded, for his unexpressed intentions could not affect the defendant's rights. Exceptions overruled.

Commonwealth v. Mowry.

did rob, steal, take and carry away; and that the said George L. Mowry was then and there armed with a certain dangerous weapon, to wit, metallic knuckles, and being then and there so armed as aforesaid the said John G. Lewis, in and upon the face and head of the said John G. Lewis, then and there did strike and wound."

This indictment was found under Gen Sts. c. 160, § 22, which is copied in the margin.* At the trial in the superior court, before Allen, C. J., the defendant contended that the indictment contained no sufficient allegation of a robbery, the robber being armed, &c., and asked the court to rule that it would not be competent for the jury to convict him of that part of the indictment; but the chief justice ruled otherwise, and the defendant was convicted, and alleged exceptions.

G. F. Verry, for the defendant.

Reed, A. G., for the Commonwealth.

BIGELOW, C. J. The objection to the indictment upon which the defendant mainly relies is, that it does not aver that the striking and wounding therein charged were inflicted with the dangerous weapon with which it is averred that the defendant was armed at the time of the commission of the robbery. Or looking into approved precedents, we do not find such avermen to be usual in indictments under statutes similar to our own. For example, under the English statute of 7 Wm. IV. and 1 Vict. c. 87, § 3, which provides for the punishment of robbery by a person armed with any offensive weapon or instrumen who at the time of such robbery shall beat or strike the person robbed, the form of indictment as given in Archb. Crim. Pl. (13th Lond. ed.) 353, contains no averment that the striking or beating was done with the weapon with which it is also alleged that the defendant was armed. Nor does it appear,

by the statement of the evidence necessary to support such an

*“Whoever assaults another, and feloniously robs, steals and takes from his person money or other property which may be the subject of larceny, such robber being armed with a dangerous weapon, with intent if resisted to kill or maim the person robbed; or being so armed wounds or strikes the person robbed; shall be punished by imprisonment in the state prison for life,"

Commonwealth v. Mowry.

indictment, that proof of that fact would be necessary. Ib. Roscoe's Crim. Ev. 892.

In indictments for robbery by a person armed with a dangerous weapon, with intent to kill or maim the person robbed, it is not necessary to allege either that the assault was committed with the dangerous weapon, or that the intent to kill or maim. was to be carried out, in case of resistance, by means of such dangerous weapon. Commonwealth v. Martin, 17 Mass. 359. In Commonwealth v. Gallagher, 6 Met. 565, the indictment was under Rev. Sts. c. 125, § 13, which, with the exception of the punishment affixed to the crime, were the same as Gen. Sts. r. 160, § 22, under which the present indictment was found. There was no averment in that case that the striking or wounding was inflicted with the dangerous weapon with which the defendant was armed. The same objection was taken to the indictment as that now urged by the counsel for the defendant. The case was disposed of on another ground, but no suggestion was made by the court that the objection was well founded. The counsel for the defendant thus failed to furnish us with any authority in support of his position.

Upon looking at the language of the statute, we find nothing which renders such averment necessary to show the consummation of the offence. There is no provision, either express or implied, that the striking or wounding is to be inflicted with the weapon with which the robber is armed. The gist of the crime is in committing a robbery while armed with a dangerous weapon, and in striking and wounding the party robbed, by whatever means the blows or wounds may be inflicted. The purpose of the statute is clear. The legislature intended that the actua commission of violence by striking or wounding, by a person in the possession of a dangerous weapon, should be regarded as a great aggravation of the crime of robbery. The statute there. fore puts a robbery so committed on the same footing with one where the robber is armed with a dangerous weapon and actually intends to kill or maim the person attacked, if resisted. The reason is obvious. A wound or blow upon the person, however inflicted, would naturally lead to resistance and conflict, in which

Commonwealth v. Thompson.

the use of the dangerous weapon with which the robber was armed would be likely to follow, with consequences as serious and dangerous to life and limb as if the robber had originally intended to kill or maim the party robbed, if resistance was offered. The striking and wounding are therefore deemed equivalent to the existence of the actual intent to do great bodily harm. In this view of the scope and purpose of the statute, it is clear that it is not necessary to aver or prove that blows or wounds were inflicted with the weapon with which the robber was armed.

The further objection is urged, that the indictment does not allege that the defendant did strike or wound the prosecutor. But this is not so. The last clause of the indictment, although somewhat inverted by putting the subject before the verb, and inserting between them another distinct averment, does charge that the defendant did strike and wound the person on whom the robbery is alleged to have been committed.

Exceptions overruled.

COMMONWEALTH vs. LEWIS O. THOMPSON.

A man may be convicted of adultery who in good faith and in the belief that she is a widow marries and cohabits with a woman who has left her husband and remained absent from him for more than seven years together without hearing of him, if in fact her husband is still living.

INDICTMENT for adultery with Emeline B. Carlton.

At the second trial in the superior court, before Allen, C. J., after the decision reported in 6 Allen, 591, it appeared that in November 1861 the defendant was married to said Emeline, and lived with her as his wife thereafter. The defendant called said Emeline as a witness, who testified that she was married to William B. Carlton in 1847; that they lived together for about two years in Dracut in this state, and then for about a year in Lawrence; that he was of dissipated habits and neglected to provide for her, in consequence of which she left him, and lived afterwards in various places until her marriage with the