27 F. Cas. 906 | U.S. Circuit Court for the District of District of Columbia | 1829
delivered the opinion of the Court, as follows, (ThRUSton, J., dissenting.)
The first and third count of this indictment seem to us to be clearly bad, because they want that technical description which is necessary to charge the defendant as a common scold or bar-ratrix, which are the only-indictable offences of this class.
Thus, in the case of Margaret Cooper, 2 Str. 1246, “ she was indicted for being a common and turbulent brawler and sower of discord among her quiet and honest neighbors, so that she hath stirred, moved, and incited divers strifes, controversies, quarrels, and disputes amongst her majesty’s liege people, contra pacem, &c.
“ It was moved in arrest of judgment that the charge was too general, and did not amount to being either a barrator or common scold, which are the only instances in which a general charge will be sufficient.
“ It was likewise objected, that, if the words did amount to a description of a scold, yet it should be laid ad commune nocumen-turn of her neighbors; for every degree of scolding is not indictable. And the court was of opinion (absente C. J.) that the judgment ought to be arrested on both exceptions, for none of the words here used are the technical words ; and it must be laid to be to the common nuisance.”
So also in the case of Rex v. Hardwicke, 1 Sid. 282, commu-nis vicinorum suorum oppressor was adjudged bad, because the word “ oppressor ” was uncertain; and that in such indictments the word bmrectator ought to be used, “ which is a word of art,” “ and all the other judges agreed that the indictment is not good without the word ‘ barrectaior; ’ and their great reason was that all the precedents are so, and that £ barrectator ’ is a word of art in such a case ; but they said that the finding him jto be a common oppressor of his neighbors had been good evidence to find him guilty of barratry, and therefore they bound him to his good behavior.”
So in the case of Bex v. Taylor, 2 Str. 849, “ an indictment was quashed for generality, being Calumniatrix, et communis et turbulenta pads perturbalrix, ac lites, rixas et pugnas movit et in-citavit, et quendam Josephum Atherton, verbis, contumeliis et op-probriis abusa fait in domo'ipsius J. A.”
So in Roll. Ab. Indictment, K. “ Defamator bonorum nominis et fama, is not good without showing some particular matter. So defamator, vexator, et oppressor multorum hominum, common foresta Her, common thief; so also common disturber of the peace of the lord the king, and that he unjustly excited and procured
So also in the case of The Queen v. Foxby, 6 Mod. 11. “ Judgment was arrested because it was that she was communis calum-niatrix, which is not the Latin word for scold, but rixatrix.”
All these have been decided not to be indictable offences. Upon the authority of these cases, we think that the judgment upon the first and third counts of this indictment must be for the defendant.
