Commonwealth v. Hart

| Mass. | Mar 15, 1858

Merrick, J.

It is contended on the part of the government that the defendants are charged in the indictment with the commission of one of the offences enumerated in the Si. of 1855, c. 405, by which all buildings, places and tenements, used as houses of ill fame, and resorted to as such, are declared to be common nuisances; and persons keeping the same are made subject, upon conviction, to punishment by fine or imprisonment, at the discretion of the court wherein they are convicted.

A verdict having been returned against the defendants, they-filed a motion in arrest of judgment, upon the ground that the indictment was vague, uncertain and insufficient in its averments ; and in support of this motion they insist that the indictment does not truly, nor in apt and appropriate legal terms, describe any one of the offences mentioned in the statute; or, if the contrary might, upon any just and proper principles of construction, be assumed, that it describes also the common law offence of keeping a disorderly house, and is thus bad for duplicity in alleging in a single count the commission of two several and distinct offences.

But upon a careful scrutiny of its allegations, the indictment does not appear to be so obnoxious to objection, either upon the ground of the imperfection or the redundancy of its averments, as to afford a sufficient reason for refusing to enter judgment upon the verdict. It certainly has the appearance of having been prepared with but little deliberate care, and with less attention to precision of expression in the description of the particular offence intended to be proceeded against under the provisions of the statute, than it is desirable to see in all legal, and especially in all criminal, proceedings. It contains undoubtedly several phrases which are partially descriptive of another offence, as well as of that which, we think, it is quite apparent it was the obvious purpose of the grand inquest to charge against the defendants. These phrases and forms of speech are however pertinent, and may therefore well be used in the description of different offences ; but their force and significance will, in each particular instance in which they are used, depend altogether upon the manner in which they are introduced into the pleadings, and upon their connection with other allegations.

In this case the indictment sets forth that on the first day of June, and on divers other days and times between that day and the first day of October then next ensuing, the defendants knowingly did keep and maintain a certain common nuisance, to wit, a certain building, to wit, a house of ill fame, situate on North Street in the city of Boston, numbered one hundred and fifty eight, resorted to for the purpose of prostitution and lewdness. All the other allegations and parts of the indictment have immediate and direct reference to this averment of the maintenance of a common nuisance, as it is identified and particularized in the statements under the videlicet. The precise and legal use of a videlicet in every species of pleading is to enable the pleader to isolate, to distinguish, and to fix with certainty, that which was before general, and which, without such explanation, might with equal propriety have been applied to different objects. 1 Chit. Crim. Law, 226. That is the use which was made of it in this indictment. The common nuisance complained of is thus shown to be the keeping of a house of ill fame, contrary to the provisions of the statute ; and by this explanation the general expression first used, though susceptible of a different meaning in itself, is restricted and confined to a precise and definite fact, and the accused are thereby secured against all danger olmisapprehending the exact offence for which 'they are called upon to answer.

If there are other expressions in the indictment which are not essential to a distinct statement of the offence intended to be charged against the defendant, they máy be regarded as useless and rejected as surplusage; for none of them are in conflict with the general purpose of the prosecution or inconsistent with an accurate description of the particular offence which is cor.i plained of.

Motion overruled.