Commonwealth v. Boon

68 Mass. 74

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1854
• Status: Published

Opinion

Merríck, J.

The warrant, which was issued in this case by the magistrate, would have been more accurate and complete, if it had contained a command to the officer by whom it was to be served to make due return of it with his doings thereon. But the want of such a command did not excuse him from the obligation of making a proper return. Tubbs v. Tukey, 3 Cush. 438. This he has done. And since the warrant was properly executed and duly returned, the deficiency of a formal command to the officer to do that which he actually did, and which he was legally bound to do whether the command was or was not expressed, affords no reason why the defendant should be absolved from answering to the charge made against her.

It is undoubtedly indispensable that nuisances should be alleged in complaints and indictments to be to the great damage and common nuisance of all the citizens of the Commonwealth. 1 Chit. Crim. Law, 245, 246. Commonwealth v. Smith, 6 Cush. 80. Such an allegation, however, was unnecessary in the complaint against the defendant, because the accusation set forth in it was not of that character. It is alleged, not only that on divers days and times she had been drunk and intoxicated by the voluntary and excessive use of spirituous and intoxicating liquors, but that on a day certain she was a common drunkard. The being a common drunkard is expressly made an offence by the statute. Rev. Sts. c. 143, § 5. And the words by which the offence is created and defined are fully descriptive of it. They are therefore technical; and because they are so, a party may well be charged in the general words of the statute. Commonwealth v. Pray, 13 Pick. 359. Stratton v. Commonwealth, 10 Met. 217.

Exceptions overruled.