Commonwealth v. Quinlan

| Mass. | Apr 3, 1891

Lathrop, J.

The complaint in question, though not in a form to be commended, sufficiently sets forth an offence under the Pub. Sts. c. 101, §§ 6, 7.

In Commonwealth v. Hart, 10 Gray, 465, the indictment charged that the defendants “ did keep and maintain a certain common nuisance, to wit, a certain building, to wit, a house of ill fame,” and contained other allegations applicable to the building. It was contended by the defendants, that the words “ did keep and maintain a certain common nuisance ” were clearly insufficient, and that these words were not aided by the words under the videlicet. But the court held that the general expression first used, though susceptible of a different meaning in itself, was, by the videlicet, restricted and confined to a definite fact.

“ The precise and legal use of a videlicet in every species of pleading ” was defined to be, “ 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.” 10 Gray, 468.

The same principles apply to the complaint now under consideration. The videlicet particularizes what was left too general. The descriptions are not repugnant to each other, and the accused is not exposed to the danger of misapprehending the exact offence he is called on to answer.

The defendant further contends that, although the word “ tenement ” in the videlicet is used in the statute, this is not enough, because the word has several meanings. As used in the Pub. Sts. c. 101, §§ 6, 7, it means either a building, or a part of a building. See Commonwealth v. Hersey, 144 Mass. 297" court="Mass." date_filed="1887-03-23" href="https://app.midpage.ai/document/commonwealth-v-hersey-6422421?utm_source=webapp" opinion_id="6422421">144 Mass. 297; Commonwealth v. Lee, 148 Mass. 8" court="Mass." date_filed="1888-11-27" href="https://app.midpage.ai/document/commonwealth-v-lee-6422926?utm_source=webapp" opinion_id="6422926">148 Mass. 8, and cases cited. It is unnecessary, however, to consider this question further, for in Commonwealth v. Skelley, 10 Gray, 464, it was held that an indictment under the St. of 1855, c. 405, § 1, (which is similar to the Pub. Sts. c. 101, § 6,) for keeping and maintaining a certain common nuisance, to wit, “ a tenement ” in a certain street and city, used in a manner prohibited by that statute, need not more particularly describe the place so used.

Exceptions overruled.