Commonwealth v. Penniman

49 Mass. 519

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1844
• Status: Published

Opinion

Dewey, J.

Is this complaint defective, in not alleging directly that the defendant committed the acts which constitute the offence with which the government seeks to charge him.1 No doubt the rules of criminal law require that, in cases like the present, the offence should be specifically charged, and especially that the person, by whom the offence is alleged to have been committed, should be certainly and plainly charged with being the actor in the offence. The inquiry is, whether, in the present case, there be any defects in these particulars. The supposed defect, and want of precision and directness in the allegations in the complaint, principally arise from the introduction of the word “against” in the following sentence: “ Stephen F. Fowler, upon his oath, complains against George Penniman, at Milton aforesaid, on the first day of February, in the year one thousand eight hundred and forty four, did sell to one Matthew .Carroll one glass of spiritous liquor,” &c. If we strike out the word “ against,” the charge would seem clearly and distinctly made, that the defendant did sell to said Carroll the spiritous liquor, &c. May this word “ against ” be rejected as surplusage ? It being no part of the offence charged, or description of the person charged, within the principles which seem well settled, we think it may be thus rejected. We have a strong precedent for this in the case cited by the district attorney, The King v. Redman, 2 Leach, (3d ed.) 536, where it was held that an indictment might be made good by rejecting, as in sensible and useless, such words as obstruct the sense of it. In that case, the intention was to charge the party with receiving stolen goods, knowing them to have been stolen, and the indictment alleged that the said Redman “ the said goods and chattels, so stolen, feloniously did receive and have, he the said Redman then and there well knowing the said goods and chattels to have feloniously stolen,” &c. The case was submitted to the twelve judges, who held that the indictment might be supported, by rejecting, as insensible, the words “ to have,” and then the indictment would read thus : “ the said Redman then and there well knowing the said goods and chattels feloniously stolen, taken and carried away.” •

There are several reported cases decided by this court, in which words set forth in an indictment have, uoon the trial, been rejected as surplusage In Commonwealth v. Pray, 13 Pick. 359, a very considerable portion of the whole allegation in the indictment was allowed to be rejected as surplusage, and a conviction was held good on the residue, it appearing, after such expurgation, that an offence was well charged. In Turns v. Commonwealth, 6 Met. 225, where the indictment alleged “ that F. with a stone, which he the said F. in his right hand then and there had and held, in and upon the head of him the said L. then and there feloniously did cast and throw,” the word “ with ” was rejected as surplusage, and the charge was then held to be, that “ F. a stone, which he in his right hand then and there had and held, then and there did cast an: throw,” &c. So in a case where the indictment charged ar. innholder with suffering “ persons to play at cards and other unlawful games,” the words “ unlawful games ” were rejected as surplusage. Commonwealth v. Bolkom, 3 Pick. 281. Also where the indictment charged the defendant with permitting persons to play “ at the game of cards,” the word “ game ” was rejected as surplusage. Commonwealth v. Arnold, 4 Pick. 251 And the word “ feloniously,” a word of technical import, and essential in giving a character to a proper accusation of a felonious act, may yet be rejected as surplusage, when insensibly and improperly introduced in connexion with an allegation of certain acts done by the defendants, which manifestly do not amount to a felony. Commonwealth v. Squire, l Met. 258.

A further exception was taken to the complaint, as to the time when the offence was charged. The complaint alleges it to have been done “ oh the first of February, in the year one thousand eight hundred and forty four.” This is clearly quite sufficient. It is true that, in giving a date to the complaint, the word “ year ” is omitted ; but that furnishes no legal objection. The complaint itself alleges the time of the commission of the nffence with precision. Exceptions overruled.