State v. Hilton , 32 N.H. 285 ( 1855 )

Eastman, J.

In drawing this indictment a clerical error was committed, by leaving out the word “knife;” the consequence of which was, that the court, in order to sustain the indictment, thought it necessary to rule, and did rule, that all that part of the indictment which went to make the offence an aggravated assault, committed with the knife, should be rejected as surplusage. The indictment was thereby left as one for a simple assault and battery, and falling within the jurisdiction of a justice of the peace to try ; and in that form the trial was had upon it.

The indictment standing in that form, the exception was taken, and a motion is made in arrest of judgment, on the ground that the indictment does not show that the common pleas had jurisdiction of the case. It is contended that the indictment should show of itself that the case had been before a justice of the peace, and that it is insufficient to prove that fact on the trial.

The first section of the statute upon which the proceeding is founded (Comp. Stat., chap. 232,) provides, that if any person shall assault and beat another, or in any way break the peace, upon complaint and conviction thereof before any justice, he shall be fined not exceeding ten dollars, or imprisoned not exceeding thirty days, &c., and shall recognize to keep the peace.

The second section provides, that if such offence is of an aggravated nature, the justice may order such offender to recognize, with sufficient surety or sureties, to appear at the court of common pleas, next to be holden in the county, and on conviction of such offender he may be punished, &c.

Upon this statute it was several years since held, in a case not yet reported, that before the common pleas could take cognizance of an indictment for an assault and battery, it must appear that the respondent had been arrested and brought before a justice of the peace, and bound over to appear at the succeeding term of the common pleas; and that an indictment found by a grand jury for an assault and battery, without such previous binding over, would be dismissed. This decision was made upon the ground, as we understand it, that such is the proper construction to be put upon the statute, and that such was the intention of the legislature in passing the act; that the intention of the statute is to confine the trial of common assaults and batteries to justices of the peace, and that the common pleas have not jurisdiction of the same except upon appeal, or upon a proper binding over by a magistrate, and that decision we are not inclined to disturb.

It being, then, essential that the respondent should be bound over for his appearance at the common pleas, an order to give that court jurisdiction of the offence, it appears to us that this fact should be set forth in the indictment. It is admitted that it must be proved; and if it is an essential matter of proof, then the respondent should have it alleged in the indictment against him, that he may know for what he is to be tried. State v. Follet, 6 N. H. 53 ; Wharton’s Cr. Law 78, 81; Cowper 682; 4 Black. Com. 306. The indictment should show upon its face that the court have jurisdiction of the offence and the prisoner, and unless the jurisdiction thus appear the indictment will be bad.

The case of a petition to the common pleas for a road in a town, where it is necessary to set forth the previous action of the selectmen, is analogous to this case. There, the petition will be dismissed for want of jurisdiction, unless sufficient appears upon its face to give the court jurisdiction. Dinsmore & al. v. Auburn, 6 Foster 356 ; Sumner’s Petition, 14 N. H. 268; Smith v. Knowlton, 11 N. H. 191; Hoit v. Malony, 2 N. H. 322; Walpole v. Marlow, ditto 385.

There being nothing in this indictment showing that the court had jurisdiction of the case, the judgment must be arrested.