State v. Goulding , 44 N.H. 284 ( 1860 )

Bellows, J.

The complaint alleges that the respondent was and remained a long time upon the sidewalk, on the northerly side of Market square, in said Portsmouth, to the annoyance and disturbance of all persons passing and repassing, contrary to the form of the ordinance, &e. This is substantially in the words of the ordinance, which provides “that no person shall be or remain upon any sidewalk, &c., to the annoyance of any person,” &c. The motion to quash is based, among other things, upon the want of any statement of the length of time the defendant remained on the sidewalk, or that he was illegally or wrongfully there, or that some person was annoyed, &c.

If the ordinance is to be literally construed, it would often deprive a person of the lawful use of the sidewalk, as it is easy to see that it would often be impossible to pass through a crowd upon it without annoyance to some one. But the object of the ordinance, we think, was to prevent the incumbering of sidewalks by the illegal use of them, by the occupation of them by one or more persons, not for the purpose of passage in a reasonable manner, or for taking across them, into dwelling-houses, stores or shops, fuel or merchandise, with a due regard to the convenience of others; or for other lawful purpose; but occupying it in an unreasonable manner, either as to the mode or duration of time, so that other passengers would be unlawfully delayed or annoyed. To prohibit such illegal use or occupation of the sidewalk the ordinance was passed, and the complaint ought to have described the offense in such way as to show an illegal use of tbe sidewalk by tbe respondent, and that other persons were annoyed by it. But the allegations in this complaint may all be true, and yet the respondent may have been in the lawful use of the sidewalk, and consequently had committed no offense.

The general rule undoubtedly is, that it is sufficient to describe the offense in the language of the statute, but to this there are many exceptions, and the case before us comes within the exception where the words of the statute, by their generality,- embrace within their literal terms cases which are not within their equity and spirit; State v. Beirce, 27 Conn. 319; Commonwealth v. Stark, 19 Pick. 307; which was an indictment under a statute making it an offense in “any one who shall, knowingly and willfully, dig up, remove, or carry away any human body”; and it was held that every removal of such body was not a crime, and that the indictment wms bad because it did not state that the removal was for purposes of dissection, although not so expressed in the statute. So in Commonwealth v. Collins, 2 Cush. 556, which was an indictment under a statute prohibiting the keeping open a shop or warehouse on the Lord’s day; and the allegations were that the defendant “did keep open his shop, and did suffer persons to resort thereto,” on a certain Lord’s day; the court held that the intent of the statute was to prohibit the keeping open of the shops, &e., for business, or other unlawful purpose, and not to restrain its being opened for necessity, as in case of fire, or for some lawful purpose, as for a religious meeting; and that, for not stating the unlawful purpose, the indictment was bad. This case is directly in point, and we think it was rightly decided.

'When the words of the statute are descriptive of the offense, then it is sufficient in the indictment to use those words; but here the general words of the statute are limited, by the obvious intention of the legislature, to the case of an unlawful use of the way; and therefore all the circumstances and ingredients which constitute the offense are not set out, as by the rules of good pleading they must be; Rix v. Horne, Cowp. 672, 682; recognized in State v. Follet, 6 N. H. 53; 2 Hawk. P. C., ch. 25, secs. 115, 111; where it is laid down that it is not always sufficient to preserve the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact whereof the offense consists, without the least uncertainty or ambiguity. So is 3 Bac. Abr. 113; State v. Robinson, 29 N. H. 274.

That it is no answer to say that the indictment preserves the very language of the statute, the authorities are numerous; among them, in addition to those already cited, are Rex v. Mason, 2 D. & E. 586; Davey v. Baker, 4 Burr. 2471; Rex v. Mason, 2 Str. 1127; Rex v. Stading, 1 Str. 497; United States v. Mills, 7 Pet. 138, 142; State v. Barrett, 42 N. H. 466 ; Anthony v. State, 29 Ala. 27; Commonwealth v. Stout, 7 B. Mon. 247; State v. Fleetward, 16 Mis. 448.

Upon these principles the complaint

Must be quashed.