Commonwealth v. Tarbox , 55 Mass. 66 ( 1848 )

Forbes, J.

In this case the same objections are made to the form of the indictment as in the case of Commonwealth v. Wright, and for the reasons stated in that case judgment must be arrested.

The matter charged in this indictment, if properly set out, would clearly constitute an offence within the Rev. Sts. c. 130, § 10. In indictments for offences of this description, it is not always necessary that the contents of the publication should be inserted; but, whenever it is necessary to do so, or whenever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of libel, that is to say, the alleged obscene publication must be set out in the very words of which it is composed, and the indictment must undertake or profess to do so, by the use of appropriate language. The excepted cases occur, whenever a publication of this character is so obscene, as to render it improper that it should appear on the record ; and, then, the statement of the contents may be omitted altogether, and a description thereof substituted; but, in this case, a reason for the omission must appear in the indictment, by proper averments. The case of Commonwealth v. Holmes, 17 Mass. 336, furnishes both an authority and a precedent for this form of pleading. In the present case, the indictment sets out the printed paper according to its purport and effect, and not. in hcec verba, or according to its tenor, or by words importing an exact transcript. The mode of pleading adopted cannot be sustained, and the indictment being insufficient, judgment is arrested.