Commonwealth v. Dean

75 Mass. 283

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Shaw, C. J.

The statute requires that the warrant shall recite the substance of the accusation. Rev. Sts. c. 135, § 2. Although this, upon a strict and literal construction, would require the insertion of the substance of the complaint in the body of the warrant, still it is a rule, almost if not quite universal, that where a paper is annexed, and definitely referred to, it is to be treated as recited in and a part of the process or instrument in which it is recited. Each of these warrants definitely refers to the complaint on the same paper, by the words, “ the above complaint,” “ the offence described in the annexed complaint,” and also mentions the names of the complainant and defendant, The words “ aboved named ” in the warrant against Hoye—obviously mistakes of the pen or of the printer — may be rejected as merely senseless, and still leave enough to make a definite refer ence to the complaint.

If it were otherwise, the defect would be a mere informality or irregularity, an omission of a recital required for the defendant’s benefit, and which was waived by a failure to take advantage of it at the earliest opportunity. The motion having been overruled in each case by the justice before whom the complaint was made, and the defendant thus obliged to proceed to trial, his pleading to the complaint there would not be a waiver of the objection. But he was bound to renew it before pleading in the court of common pleas. The objection is not therefore now open to the defendant in the first case. But we do not put it upon this ground ; inasmuch as the answer already made is sufficient to dispose of both cases. Exceptions overruled