Commonwealth v. Ware, 375 N.E.2d 1183 (Mass. 1978). · Go Syfert
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Commonwealth v. Ware, 375 N.E.2d 1183 (Mass. 1978). Cases Citing This Book View Copy Cite
24 citation events (8 in the last 25 years) across 4 distinct courts.
Strongest positive: Commonwealth v. Oberle (mass, 2017-02-28)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 11 distinct citers.
discussed Cited as authority (rule) Commonwealth v. Oberle
Mass. · 2017 · confidence medium
It is not required that the Commonwealth prove a specific intent to confine, Commonwealth v. Ware, 375 Mass. 118, 119-120 (1978), but the act of confinement must be independent of the other crimes at issue, Boyd, supra at 195 .
discussed Cited as authority (rule) Gallivan v. Walker
Utah · 2002 · confidence medium
Interest Research Group, 375 N.E.2d at 1183 (concluding that requiring initiative supporters to show support over a geographic distribution was reasonable). [163 The second question to be answered is whether the legislature's purpose in requiring initiative supporters to demonstrate statewide support for their initiatives is legitimate.
discussed Cited as authority (rule) Commonwealth v. Bibby (2×) also: Cited "see, e.g."
Mass. App. Ct. · 2002 · confidence medium
That statute sets out three relevant clauses, which read: “Whoever, without lawful authority, [1] forcibly or secretly confines or imprisons another person within this commonwealth against his will, or [2] forcibly carries or sends such person out of this commonwealth, or [3] forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will, or to cause him to be sent out of this commonwealth against his will or in any way held to service against his will, shall be punished . . . .�…
cited Cited as authority (rule) Commonwealth v. Hamel
Mass. App. Ct. · 2001 · confidence medium
See id. at 464-465, 470-473 , citing also Commonwealth v. Gosselin, 365 Mass. at 121 ; Commonwealth v. Ware, 375 Mass. 118, 120 (1978); Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115 (1987).
discussed Cited as authority (rule) Commonwealth v. Banfill
Mass. · 1992 · confidence medium
The statute requires not only an intention to commit the underlying offense, see Commonwealth v. Ware, 375 Mass. 118, 120 (1978), but also an overt act toward its commission, Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974); Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115 (1987).” Commonwealth v. Ortiz, supra at 470 .
discussed Cited as authority (rule) Commonwealth v. Titus
Mass. App. Ct. · 1992 · confidence medium
Even if we regard the “intent” language of the indictment as not surplusage, but see Commonwealth v. Ware, 375 Mass. 118, 120 (1978) (intimating that the “intent” language in an indictment based on the third clause might be regarded as superfluous where the remaining language of the indictment is sufficient to embrace the first clause), there was sufficient evidence from which the jury could have found beyond a reasonable doubt that the defendant forcibly confined or imprisoned Ann with the intent to cause her to be secretly confined or imprisoned against her will.
discussed Cited as authority (rule) Commonwealth v. Ortiz
Mass. · 1990 · confidence medium
The statute requires not only an intention to commit the underlying offense, see Commonwealth v. Ware, 375 Mass. 118, 120 (1978), but also an overt act toward its commission, Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974); Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115 (1987).
discussed Cited as authority (rule) Commonwealth v. Saylor (2×) also: Cited "see"
Mass. App. Ct. · 1989 · confidence medium
Commonwealth v. Ware, 5 Mass. App. Ct. 506, 508-509 (1977), S.C. 375 Mass. 118, 119 (1978).
discussed Cited as authority (rule) Commonwealth v. Foley
Mass. App. Ct. · 1987 · confidence medium
A criminal attempt has two elements: (1) a specific intent to commit the substantive offense (see Commonwealth v. Ware, 375 Mass. 118, 120 [1978]; Perkins, Criminal Law 573 [2d ed. 1969]), and (2) an overt act towards its commission, which “must approach the achievement of the substantive crime attempted near enough to warrant criminal liability in view of such circumstances as the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger.” Commonwealth v. Gosselin, 365 Mass. at 121 .
discussed Cited as authority (rule) Commonwealth v. Dean
Mass. App. Ct. · 1985 · confidence medium
General Laws c. 265, § 26 (first sentence), as appearing in St. 1971, c. 900, reads as follows: “[1]Whoever, without lawful authority, forcibly or secretly confines or imprisons another person within this commonwealth against his will, or [2] forcibly carries or sends such person out of this commonwealth, or [3] forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will, or to cause him to be sent out of this commonwealth against his will or in any way held to service agains…
cited Cited "see" Commonwealth v. Lent
Mass. App. Ct. · 1999 · signal: see · confidence high
See Commonwealth v. Ware, 375 Mass. 118, 120 (1978).
Commonwealth vs. George Ware
Massachusetts Supreme Judicial Court.
Apr 27, 1978.
375 N.E.2d 1183
Frances M. Burns, Assistant District Attorney, for the Commonwealth, Andrew Good for the defendant.
Abrams, Hennessey, Kaplan, Quirico, Wilkins.
Cited by 16 opinions  |  Published
Wilkins, J.

The defendant was convicted on an indictment which charged him with an attempt, “without lawful authority, to forcibly seize, confine and kidnap [the victim] with intent to cause her to be forcibly and secretly confined and imprisoned within the said Commonwealth against her will and to be held to service against her will.” The Appeals Court reversed the conviction on the ground that the trial judge failed to give adequate instructions concerning the requisite intent to commit the crime. Commonwealth v. Ware, 5 Mass. App. Ct. 506, 509-510 (1977). We granted the Commonwealth’s application for further appellate review. We agree that the judge’s charge on the question of intent was inadequate and we reverse the judgment.

We also agree with the Appeals Court that the crime of attempt involves an intent to commit a substantive crime. Id. at 507. See Commonwealth v. Hebert, 373 Mass. 535, 537 (1977). The judge never so instructed the jury, although the defendant adequately raised the point by a request for such an instruction. No clear and fair implication that such an intent was required can be found from reading the charge as a whole.

The Commonwealth argues that a crime can be made out under G. L. c. 265, § 26, without proving any criminal intent. [1] It well may be that the first clause of § 26 —[*120] “[w]hoever, without lawful authority, forcibly or secretly confines or imprisons another person within this commonwealth against his will . . . shall be punished” — states a crime which does not require a specific criminal intent. See Commonwealth v. Nickerson, 5 Allen 518, 528 (1863), which dealt with Gen. Sts. c. 160, § 30, a statute substantially the same as § 26. However, an attempt to commit that crime, as with any other attempt, does require a specific intent.

We note that the indictment appears to be derived from the third clause of § 26, and we agree with the Appeals Court that the third clause does require an intent to commit the crime. Commonwealth v. Ware, supra at 507. That clause reads “[whoever] forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will ... or in any way held to service against his will, shall be punished” (emphasis supplied). Even if we were to ignore the allegations of the indictment incorporating language from the third clause of § 26 as surplusage (Commonwealth v. A Juvenile, 365 Mass. 421, 440 [1974], Commonwealth v. Farren, 9 Allen 489, 491 [1864], and Commonwealth v. Squire, 1 Met. 258, 261 [1840]), leaving only those words which parallel the language of the first clause of § 26, the failure to instruct on intent to attempt that crime requires reversal.

We see no need to discuss the other issues raised by the defendant’s appeal. The judgment of the Superior Court on indictment No. 93195 is reversed, and the verdict on that indictment is set aside.

So ordered.

1

'The first sentence of G. L. c. 265, § 26, as appearing in St. 1971, c. 900, reads as follows: “Whoever, without lawful authority, [1] forcibly or secretly confines or imprisons another person within this commonwealth against his will, or [2] forcibly carries or sends such person out of this commonwealth, or [3] forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly con[*120] fined or imprisoned in this commonwealth against his will, or to cause him to be sent out of this commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and in for not more than two

The clauses referred to in this opinion as the first, second, and third are preceded in the above quotation by [1], [2], and [3], respectively.