State v. M'Gregor, 41 N.H. 407

State v. M'Gregor

41 N.H. 407 | N.H. | 1860

Fowlee, J.

The motion to quash for want of addition, after plea of not guilty pleaded, and the jury had been impanelled and sworn, as also the motion in arrest of judgment, were properly denied.

Regularly, the name and addition of every party indicted ought to be truly inserted in the indictment; but, if one be indicted by a wrong Christian or sir name, or addition, and he plead to that indictment not guilty, or answer to it by that name on his arraignment, he shall not be received *412afterward to plead misnomer or falsity of bis addition, for be is concluded and estopped by bis plea by that name; and of that estoppel tbe jailer and sheriff, that do execution, shall have advantage. Therefore, he that will take advantage of the misnomer of his Christian name, sir name, or addition, must do it by motion to quash, or plea in abatement, on his arraignment; and the entry must be special. So, if there be no addition, yet, if the party appear and plead not guilty, without taking advantage of that defect, he shall never allege the want of addition to stop his trial or judgment; for, by his appearance and pleading to issue, the indictment is affirmed, the want of addition saved, and the statute satisfied. 2 Hale P. C. 175, 176; 2 Rolle 50, 88; Cro. Eliz. 148, 198, 249, 609; Foster 16; Bac. Abr., Indictment, G, 2; Hawkins, b. 2, c. 34, s. 4; William’s Justice, Misnomer & Addition, II. ; 1 Ch. Cr. Law 204, 299, 300, 301, 447; Wharton Cr. Law 242; Rex v. Rockwood, Holt 683; 4 State Trials 677; Winzorpflin v. State, 7 Blackf. 186.

The evidence to show that, during the period mentioned in the indictment, the defendant went to Nashua and procured a woman to go to Manchester and -live .in, the house mentioned in the indictment, was properly admitted, inasmuch as it had some tendency to show that the defendant had the management of the house; and it was wholly immaterial whether as principal, or as the agent or servant, and by the command of another, since the charge in the indictment does not respect the ownership, but the criminal management of the house. Regina v. Pierson, 1 Salk. 382; S. C., 2 Ld. Raym. 1197; 2 Ch. Cr. Law 39, note; 3 Gr. Ev., sec. 186; State v. Bell, 5 Post 365; State v. Mathes, 1 Hill (S. C.) 37; Regina v. Williams, 1 Salk. 384; 2 Rolle 345; 3 Keble 34; 1 Keble 575.

So, too, with the evidence as to the character and reputation of the persons visiting the house in question during the period mentioned in the indictment; it seems to us to *413have been clearly admissible. One allegation of the indictment was that the defendant, for his own lucre and gain, did cause and procure certain persons, as well men as women, of evil name, fame, and conversation, to come together in said house within the period mentioned, and unlawfully permit them to be and remain there, drinking, whoring, and otherwise misbehaving themselves, atunlawful times, as well in the night as the day, to the common nuisance, &e. The nuisance consists in drawing together dissolute persons engaged in unlawful and injurious practices, thereby endangering the public peace and corrupting good morals. The gist of the offence is the keeping or managing such a house to the public detriment, and, under a general charge, particular instances may be proved. That notoriously reputed prostitutes and libertines were in the habit of frequenting the house during the time laid in the indictment, had a direct tendency to support the allegations of the indictment and establish the guilt of the defendant, if the house were managed or controlled by him at the time; Commonwealth v. Kimball, 7 Gray 328; where, upon an indictment for keeping a bawdy house, it was expressly hold-en, in the language of the head note, that the character of women frequenting the house, and the character of their conversation in the house, were competent evidence against the keeper of the house. Rex v. Higginson, 2 Burr. 1233; J’Anson v. Stewart, 1 D. & E. 754; Clarke v. Periam, 2 Atk. 339; 2 Ch. Cr. Law 39, note; 3 Ch. Cr. Law 671. State v. Bailey, 21 N. H. 343, to a ruling in which, at nisi prius, we have been referred in the argument, it will be seen, upon examination, was not an indictment for keeping a bawdy house.

That persons jointly guilty of crimes may be separately indicted and convicted; in other words, that most crimes committed by several are in law perpetrated by them severally as well as jointly, is too elementary a principle to need an argument or the citation of authorities to support *414it; as is also the principle involved in tbe other branch of the instructions objected to, that one who is present, aiding and abetting, and for the purpose of aiding and abetting in the commission of a crime, is guilty, as principal, of that crime.

'With these views of the correctness of the rulings and instructions in the court below, the objections taken thereto must be overruled.

Exceptions overruled.