| N.H. | Jan 15, 1857
These indictments were both intended to be founded on the second section of the 215th chapter of the Revised Statutes, which enacts, that if any person shall willfully
The indictment against Gove and wife avers that the respondents, with force and arms, did “feloniously and unlawfully” set fire to, and consume the store or warehouse therein described. The exception taken is that it does not allege that the respondents burned the store or warehouse “ willfully and maliciously,” as the statute requires it should have done, to describe with legal accuracy the offence intended to be charged.
The indictment against Card alleges that the respondent 11 feloniously, unlawfully and willfully” did set fire to, burn and consume a certain barn, &c. It is objected that it does not allege the burning to have been done “ willfully and maliciously.”
It is a well established general rule of criminal pleading in relation to offences created by statute, that where the words of the statute are descriptive of the offence, the indictment must follow, substantially at least, the language of the statute, and expressly charge the respondent with the commission of the offence as described, or it will be defective. The respondent must be brought within all the material words of the statute, and' nothing will be taken by intendment. Wharton’s Cr. Law 185, and authorities; 1 Chitty’s Cr. Law 281, 2, 3; 1 Archb. Cr. Plead. 50; People v. Allen, 5 Denio 76" court="N.Y. Sup. Ct." date_filed="1847-10-15" href="https://app.midpage.ai/document/people-v-allen-5465493?utm_source=webapp" opinion_id="5465493">5 Denio 76.
Where a particular intent is essential to constitute a crime, that intent must be distinctly alleged in the indictment. People v. Lohman, 2 Barber’s S. C. 216; Gabe v. State, 1 Eng. 519; Commonwealth v. Morse, 2 Mass. 128" court="Mass." date_filed="1806-09-15" href="https://app.midpage.ai/document/commonwealth-v-morse-6402925?utm_source=webapp" opinion_id="6402925">2 Mass. 128.
There can be no doubt that the words, “ willfully and maliciously,” in the statute under consideration, are descriptive of the offence defined — are an essential portion of that description. The burning must be willful and malicious — done with a willful and malicious intent — or the statute offence is not committed.
Admitting the latter to be the better established rule, we are fully satisfied that neither “ feloniously and unlawfully,” as in the indictment against Gove and wife, nor “ feloniously, unlawfully and willfully,” as in that against Card, are synonymous, equivalent, of the same legal import, or substantially the same, as the statute words, “ willfully and maliciously.” Wharton’s Cr. Law 189; Rex v. Davis, 2 Leach 556: Rex v. Jukes, 8 D. & E. 536.
These indictments, then, having employed neither the essential words of the statute, or their synonyms, or equivalents, in describing the offence charged, must be held bad upon demurrer, or motion to quash, and the verdict, in the case of Gove and wife, does not cure the defect.
At common law, any objection to an indictment, that would have been fatal on demurrer or motion to quash, was in general equally fatal upon a motion in arrest of judgment. Commonwealth v. Morse, 2 Mass. 128" court="Mass." date_filed="1806-09-15" href="https://app.midpage.ai/document/commonwealth-v-morse-6402925?utm_source=webapp" opinion_id="6402925">2 Mass. 128; Brown v. Commonwealth, 8 Mass. 59" court="Mass." date_filed="1811-09-15" href="https://app.midpage.ai/document/brown-v-commonwealth-6403733?utm_source=webapp" opinion_id="6403733">8 Mass. 59; Commonwealth v. Child, 13 Pick. 198; 4 Black. Com. 324; 1 Chitty’s Cr. Law 442, 663; Commonwealth v. Northampton, 2 Mass. 116" court="Mass." date_filed="1806-09-15" href="https://app.midpage.ai/document/mixer-v-dalrymple-6402919?utm_source=webapp" opinion_id="6402919">2 Mass. 116.
. And although there are several points in which an indictment is cured by a verdict, defective description of the offence charged is not one of them. Wharton’s Cr. Law 974, 975, and authorities.
It is true, that where an offence, as described in the indictment, is punishable at common law only, although the indictment avers it to have been committed against the form of the statute, it may be regarded as well settled, that the conclusion against the form of the statute may be rejected as surplusage, and the indictment be good for an offence at common law. State v. Buckman, 8 N. H. 205, and authorities.
But this rule is only applicable to indictments for acts which are not punishable specially by statute ; and when, what was a misdemeanor only at common law, is made punishable as a felony by statute, or where the statute declares a common law offence, committed under peculiar circumstances and with a particular intent not necessarily included in the original offence, punishable in a different manner from what it was or would be without such circumstances and such intent, an indictment for the statute offence, bad as such for insufficient description, will not be good at common law, for an indicia A at common law no longer lies in such case. Wharton’s Cr. Law 80 ; People v. Enoch, 18 Wendell 159; Rex v. Cross, 1 Ld. Raymond 711; 3 Salkeld 193; Commonwealth v. Newell, 7 Mass. 245" court="Mass." date_filed="1810-11-15" href="https://app.midpage.ai/document/commonwealth-v-newell-6403645?utm_source=webapp" opinion_id="6403645">7 Mass. 245; Commonwealth v. Gable, 7 Serg. & Rawle 423.
But it is unnecessary to pursue this inquiry further, for we apprehend that the indictments under consideration do not describe any offence known to the common law in such a manner as would be requisite to render them valid.
These indictments, therefore, being fatally defective in not alleging the offence charged, in the material language of the statute descriptive of the same, or its equivalent, the motion in arrest of judgment in one case, and that to quash in the other, must prevail.