State v. Barrett

42 N.H. 466 | N.H. | 1861

Nesmith, J.

It is necessary to refer to the first section of chapter 143, and to the seventh section of chapter 32 of the Compiled Statutes, to obtain a definition of the crime denominated a rescue, and its mode of punishment. Both the offense, as created by statute, and its penalty are there found. At common law, a rescue is defined as the taking away and setting at liberty against law, a distress, taken for rent, or services, or damage feasant. 1 Buss, on Crimes 410; 2 Ch. Cr. Law; Rex v. Bradshaw, 7 C. & P. 233. To constitute this offense under our statutes, it must appear that the property was wrongfully taken from the party who had at the time the actual legal custody of it; — in this case, that the oxen were found either damage feasant or going at large contrary to the statute, and that the complainant was about to impound them for the cause assigned; and the respondent, well knowing the'premises, unlawfully, and against the will of the complainant, with force and arms, rescued the said animals out of his custody, and prevented the complainant from impounding the same, contrary to the form of the statute in such cases made and provided, &e. Bell’s Justice & Sheriff, 39; Fitzherbert’s N. B. 230; Rex v. Bradshaw, ante; Vinton v. Vinton, 17 Mass. 344; Bac. Ab., Rescue.

In the case before us there is a material omission in the indictment of any allegation that the oxen were found either in the close of the complainant damage feasant, or wrongfully at large in the streets of Amherst, in violation of the statute provisions provided in such cases. It is not enough to allege that the animals were lawfully dis-trained ; the facts constituting the legal grounds for the distress must be particularly set forth, so that the respondent may be enabled to prepare his defense.

The general rule is, that indictments upon statutes must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely -within it. 1 Ch. Cr. Law 232; State v. Gove, 34 N. H. 515. The omission of any fact necessary to constitute the offense will be fatal. Whart. Cr. Law 117. No general allegation of unlawfulness, nor of being against the statute, nor any conclusion, will make good the indictment, if it do not bring the act prohibited within the material words of the statute. Whart. Cr. Law 138.

An indictment, defective or bad on demurrer, must be held insufficient, on motion, in arrest of judgment. Commonwealth v. Child, 13 Pick. 198; Commonwealth v. Brown, 8 Mass. 59; State v. Abbott, 31 N. H. 434; State v. Hoit, 23 N. H. 359. The character and requisites as well as the defects of an indictment of this nature, are well considered and illustrated in a recent case. State v. Beasom, 40 N. H. 367. In this case,

Judgment must be arrested.