Commonwealth v. Stoddard

Gray, J.

The St. of 1864, c. 250, § 2, which requires that any objection to an indictment for a formal defect apparent on its face shall be taken by demurrer or motion to quash before the jury is sworn, is not limited to indictments found after the statute took effect, and upon the ordinary principles of the construction of statutes would seem to apply to any trial had after it went into operation on an indictment found before it was passed. But it is not necessary in this case to express any decisive opinion upon that question; for the defendant certainly had no right to require the court to determine in advance whether-the objections on which she relied would be open to her in arrest of judgment, and was not injured by the advice of the judge to point out the defects before the jury were sworn.

The defendant objects to the sufficiency of the indictment in two respects; 1st, for not stating any crime ; 2d, for not naming or describing the child alleged to have been exposed.

Considered as a full description of the offence of which the pleader seems to have intended to accuse the defendant, the indictment is quite defective. It does not allege that the person injured was of tender years, or unable to take care of herself; noi that she was the defendant’s child, ward, servant or apprentice, or in her care or keeping; nor that the child was injured ; and so does not show a criminal exposure or neglect of the child. Rex v. Ridley, 2 Camp. 652. Regina v. Pelham, 8 Q. B. 965. Regina v. Waters, 1 Denison, 360; S. C. 3 Cox C. C. 803; Temple & Mew, 62. Regina v. Phillpot, Dearsly, 183; S. C. 6 Cox C. C. 140. But the indictment does distinctly charge an assault upon the child; and on that charge the defendant may be sentenced.

When the name of a person injured is unknown to the grand jury, it may be so alleged in the indictment, and no further description of that person is necessary. But the proof must correspond with the allegation, and unless the traverse jury are satisfied that the name was unknown to the grand jury, the defendant is not to be convicted. It has sometimes been said that a name could not be alleged to be unknown, which the grand jury haa the means of informing themselves of, or might with reasonable diligence have ascertained. But in our opinion it is no part of the duty of the jury of trials to judge what the grand jury could or ought to have known, and make, that the test of what they did know, and thus create a variance where the indictment precisely ’ corresponds with the fact. Still less could the presiding judge, from the evidence introduced in this case, determine as matter of law that the grand jury must have known the name of the child. Commonwealth v. Tompson, 2 Cush. 551. Commonwealth v. Thornton, 14 Gray, 42. The question whether they did know it was rightly submitted to the jury of trials, and, we must presume, with proper instructions; for his instructions are not reported in the bill of exceptions; and the only exception taken on this point is to his refusal to instruct the jury that the defendant was entitled to an acquittal, and allowing the case to go to the jury without such an instruction.

Exceptions overruled.