Commonwealth v. Smith , 153 Mass. 97 ( 1891 )

Field, C. J.

The defendant moved to quash this complaint because “it did not sufficiently set forth the time when the alleged offence was committed, the day of the month being expressed in Arabic figures.” The time when the offence was committed is described in the complaint as “ on the 26th day of July, in the year eighteen hundred and ninety.”

The English statutes of 4 Geo. II. c. 26, and of 6 Geo. II. c. 14, did not extend to the Colonies, and all writs, processes, declarations, indictments, etc., in the Province of Massachusetts Bay, long before the passage of these statutes were required by a provincial statute to be “in the English tongue and no other,” if indeed by reason of the usage prevailing in the Colony and Province any statute was necessary. Prov. St. 1701-2, c. 5, § 1, 1 Prov. Laws, (State ed.) 464. The provincial acts of 1692-98, c. 33, § 13, 1697,- c. 9, § 11, and 1699-1700, c. 4, § 6, 1 Prov. Laws, (State ed.) 75, 287, 374, contained a similar provision, but these acts had been disallowed by the Privy Council. The English decisions, therefore, upon the use of Arabic figures when indictments were in the Latin language, or such decisions under the peculiar language of the English statutes, are not directly applicable to indictments and complaints in this Commonwealth.

In Commonwealth v. McLoon, 5 Gray, 91, it was decided that a complaint which charged the defendant with unlawfully selling intoxicating liquors “ on the fifteenth day of July, 1855,” was insufficient, and it was said that “ to make the allegation of time in the indictment [complaint] against the defendant sufficient, there should, at all events, have been words, or at least letters, which have acquired an established use in the English language, so added to or connected with the figures contained in it, as to describe or indicate with certainty the era to which it was intended that they should refer. Commonwealth v. Clark, 4 Cush. 596.” The court declined to express any opinion whether it was sufficient “ to describe the time by the use of numeral letters or figures,” or whether it “ must be expressed in words written out at full length.” In Commonwealth v. Doran, 14 Gray, 37, the time was described in the complaint as “ on the fourteenth day of December in the year one thousand eight hundred and fifty eight,” and this was held sufficient, the court construing the word “ year ” to mean “ the year of our Lord.” See Commonwealth v. Walton, 11, Allen, 238.

In a g'eneral sense, the Arabic signs for expressing number are now a part of the English language, and we think that by the weight of authority in this country it must be held that the allegation of time in this complaint is sufficient, although it is undoubtedly the better practice in criminal pleading to write out in words at length the day of the month, and the year, when time is alleged. Commonwealth v. Hagarman, 10 Allen, 401. State v. Reed, 35 Maine, 489. State v. Seamons, 1 Greene, (Iowa,) 418. State v. Raiford, 7 Porter, 101. State v. Smith, Peck, 165. State v. Hodgeden, 3 Vt. 481. State v. Tuller, 34 Conn. 280. 1 Bish. Crim. Proc. (3d ed.) §§ 344-346, 389.

The complaint charges the defendant with making an assault “ in and upon the body of Jos. T. Battles.” The evidence was that the name of the person assaulted was “ Joseph T. Battles.” The defendant asked the court to rule “ that there was a variance, a.nd that under this complaint alleging an assault upon Jos. T. Battles the defendant could not be convicted of an assault upon Joseph T. Battles.” The name of the person assaulted occurs three times in the complaint. The complaint charges that the defendant “in and upon the body of Jos. T. Battles . . . . . did make an assault, and him, the said Joseph T. Battles, did then and there beat, bruise, and wound, .... and other wrongs to the said Joseph T. Battles then and there did.” We think that it appears by the complaint itself that the name of the person assaulted was Joseph T. Battles, and that “ Jos.” is an abbreviation for “ Joseph,” and that the court rightly refused to rule that there was a variance.

It appears from the exceptions that Battles, who was a police officer, “ had been especially detailed to attend to keeping the streets clear of obstructions, and was engaged upon this service at the time of the alleged assault,” under instructions given by Captain Wheeler, and received from the chief of police, and that by an ordinance of the city of Fitchburg, it was provided that the chief of police “ shall take notice of all nuisances, impediments, and obstructions in the streets of the city, and shall remove the same, or take all proper action in relation thereto.” It has not been conten ded that the city council had not authority to pass such an ordinance.

Of the first three requests for instructions, it may be said that they are all predicated upon the hypothesis that the defendant was, at the time of the alleged assault, a traveller, and had the rights of a traveller with a horse and wagon upon the street. The court in effect ruled that, if he was a traveller at that time, the officer had no right to interfere with him. The fourth and fifth requests for instructions ought not to have been given, if the defendant with his horse and wagon was not at the time a traveller, and they were an obstruction in the street.

The fact that the defendant’s horse and wagon were upon the left side of the street was, in the charge of the court, apparently considered as immaterial, except so far as it might tend to show whether the defendant was using the street as a traveller with a horse and wagon, or as a place to leave his horse and wagon in while he amused himself by watching the procession. The court left it to the jury to say whether the defendant was a traveller, and was making a reasonable use of the highway under all the circumstances shown, and instructed them that, “if his [the defendant’s] stop was a reasonable one, he was ” a traveller, “ and the officer had no right to interfere,” and that, if he was not a traveller, the officer had a right to remove the horse and wagon, using no more force than was necessary, if the defendant on request refused to remove them. No exception was taken to these rulings, the only exceptions being to the refusal to give the rulings requested, and these, we think, were either given in substance, or ought not to have been given in the form in which they were presented.

Exceptions overruled.