State v. Peirce , 43 N.H. 273 ( 1861 )

Bellows, J.

The complaint in this case appears to be founded upon section 1, chapter 113,'of the Revised Statutes, which provides, that “ No person shall make any brawls or tumults, or in any street, lane, or alley, or other public place be guilty of any rude, indecent, or disorderly conduct, or shall insult, or wantonly impede any person passing therein; or shall throw any stones, bricks, snow-balls, or dirt, or play at ball or any game at which ball is used.”

The complaint charges that the respondent, in a public street in Portsmouth, was guilty of indecent and rude conduct, contrary to the statute, without any further description of the acts complained of. And we are of the opinion that this is not the plain and substantial description of the ofiense which the law requires; inasmuch as it does not apprise the defendant of the precise nature of the charge, or enable the court to judge whether it be an ofiense or not; nor is it identified so that on a conviction under it, the plea of autrefois convict would be fairly brought within the prisoner’s reach.

It is said, however, that this is a statute ofiense, and that it is sufficient to describe it in the language of the statute as is done here. In a general sense this may be true, when the offense is created by statute, and all its elements distinctly defined; but in this case the ofiense was not created by statute, but was indictable at common law. 2 Ch. Cr. Law 41; nor does the statute undertake to define it at all. The elements which constitute the ofiense must, therefore, be set out with such substantial certainty as to identify it, and apprise the defendant of what he is charged; and so are the forms given by Mr. Chitty before cited. In accordance with these views, it is held in'Vermont and Massachusetts, upon indictments under statutes for publishing obscene books, as in the second section of our Revised Statutes before cited, the publications should be set out in hcec verba, unless too obscene to go upon the record, in which case the excuse should be stated, and such other general description given as the circumstances would admit. State v. Brown, 27 Vt. 619; Commonwealth v. Tarbox, 1 Cush. 66. These general principles are also recognized in our own courts. State v. Follett, 6 N. H. 53; State v. Ladd, 32 N. H. 110; State v. Prescott, 33 N. H. 212; State v. Gove, 34 N. H. 511; State v. Wentworth, 37 N. H. 196. So, also, Commonwealth v. Pray, 13 Pick. 359, where it is held that it is usually not enough to describe the offense in the words of the statute; the established rules of pleading requiring the essential facts and circumstances to be set out. So is Anthony v. State, 29 Ald. 27; State v. Raiford, 7 Port. 10; State v. Stedman, 7 Port. 496; State v. Raines, 3 McCord 553; Commonwealth v. Stone, 7 B. Mon. 247; Commonwealth v. Winslow, 28 Pick. 374; Commonwealth v. Odlin, 23 Pick. 275. See, also, United States v. Gosling, 12 Wheat. 460-474.

The same general doctrine is to be found in the English authorities. In Rex v. Sparling, 1 Str. 497, which was an indictment under the statute of 19 Geo. 2, ch. 21, against profane cursing and swearing, it was held that it was not sufficient to allege that the defendant profanely swore 54 oaths, and profanely cursed 160 curses, contra formam statuti, but that such oaths and curses ought to be set out; because what is a profane oath or curse is matter of law. So is Rex v. Popplewell, 1 Str. 686. In Davy v. Baker, 4 Burr. 2471, which was an indictment under an act-of Parliament of 2 Geo. 2, ch. 24, to prevent bribery at elections, enacting, “ That if any person shall ask, receive, or take any money, or other reward, he shall forfeit ¿6500, and be disabled to vote at any election,” it was decided that an allegation that the defendant did receive a gift or reward, without specifying what he took or received as a reward, was bad, as not laid with sufficient certainty so as to be pleadable in bar in another proceeding. See, also, 1 Ch. Cr. Law 231, 232; 2 Hawk. P. C., ch. 25, sec. 59, and cases cited.

There is a class of eases where the offense, being of a complicated nature, and consisting of the repetition of divers acts in disturbance of the peace, it is not necessary to incumber the record with a statement of such acts; as a common barrator, a common scold, a keeper of a common bawdy house, or gaming house. In these and the like cases, the charge in the indictment may be in general terms to avoid prolixity, and without setting out that series of acts which constitute the offense which is punished by the statute. 2 Hawk. P. C., ch. 25, sec. 59; 1 Chitty Cr. Law 156-230; State v. Prescott, 33 N. H. 212. The authorities referred to by the solicitor are, many of them, of this character, and do not apply to the case before us.

The motion, therefore, of the defendant, must prevail, and the complaint

Must be quashed.