Commonwealth v. Caldwell

14 Mass. 330

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1817
• Status: Published

Opinion

Parker, C. J.

By the statute of 1791, c. 58, tithingmen are authorized and required to examine such as they find travelling on the Lord’s day, and whom they have reason to suspect of travelling unnecessarily; and if such travellers refuse to give their names, or to answer such inquiries as are made touching the cause of their travelling, they are. subjected to a penalty.

* The defendant has been indicted and convicted for not answering such questions as were put to him by the tithingman who caused the prosecution; and a motion is now made to arrest the judgment, on account of the insufficiency of the indictment.

The first objection is, that it is not alleged in the indictment that the tithingman was sworn into office. This is not necessary. To constitute a tithingman, it is necessary that he should be sworn; and to allege that he is a tithingman, involves the allegation that he is sworn.

The next objection is, that it is not alleged that the tithingman had any wand or badge of office. This, although necessary under a former law, is not required by the present statute, and therefore need not be alleged.

The third objection is, that it is not averred that the defendant knew Stone to be a tithingman. But this is not necessary, he being a public officer. The indictment in this particular follows the statute. The scienter is not a constituent part of the offence, as in possessing counterfeit bank notes. If the defendant did not know him to be an officer, this, would be good defence by the com raon law, and need not be negatived in the indictment.

Motion in arrest overruled