24 N.H. 143 | Superior Court of New Hampshire | 1851
In drawing this indictment, it appears that the usual course of stating the place where the offence was committed, after having stated the time, was accidentally omitted. The words at “ Moultonborough aforesaid, in the county aforesaid,” should, according to the usual forms, have been inserted after the words “ fifty one.” But they were omitted, and the question arises whether the omission is fatal to the indictment.
The place where a crime is alleged to have been committed must be stated in such manner as to show that the court have jurisdiction of the offence. It must also be stated with such certainty that the respondent may be fully informed of the charge in this respect, as well as otherá ; and with such distinctness that the judgment rendered upon the indictment may be pleaded in bar to any second indictment for the same offence. When, also, the place is matter of essential description, it must be particularly and truly stated, and proved as stated.
The indictment charges that “ John Cotton, of Moultonbo
The venue in the margin is correctly laid, and the respondent’s residence is stated to be within the jurisdiction of the court. Had any place been more specifically pointed out as the one where the offence was committed, according to the usual forms and practice it would have been done by stating it to have been “ at Moultonborough aforesaid, in the county aforesaid,” referring to what had been alleged as the residence of the respondent. This usual link between the place of residence and the allegation then and there did steal, take and carry away, having been omitted, can the phrase, then and there, be sufficient without it ?
The words then and there, as used in an indictment, are words of reference; and when time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words; and they will have the same effect as if the time and place were actually repeated. Whar. Crim. Law, 74. These words also refer to the time and place last specified, unless there be some phrase connected therewith which shows that a different reference is intended. In this indictment we think they are properly referable to “ Moultonborough, in the county of Carrol,” the alleged place of the respondent’s residence; and that it is not a strained construction to hold, after verdict or a plea of guilty, that by this reference the place where the offence was committed is sufficiently described. The omission might have been bad on special demurrer ; but that is not the question before us, and no opinion in regard to it need be given.
The motion to withdraw the plea in case judgment should not be arrested, is rather novel. It is, however, one to be addressed to the discretion of the common pleas, and is proper for their consideration, and the consideration of the prosecuting officers.
Motion in arrest of judgment overruled.
