Commonwealth v. Prescott

23 N.E. 729, 151 Mass. 60, 1890 Mass. LEXIS 139

Opinion

Devens, J.

The defendants filed in the District Court a motion to quash the complaint, upon the ground that it did not set forth any offence, that it did not sufficiently describe the act of the defendants, and that it was uncertain and insufficient as to the acts and means by which the offence was committed. This motion was renewed by them in the Superior Court. The complaint was for a violation of the Pub. Sts. c. 91, § 58,

Footnotes

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* and follows substantially the words of the statute. Where an offence is created by statute, it is as a general rule sufficient to charge the offence in the words of the statute, and in the case at bar these words are carefully followed in the complaint. Commonwealthv. Barrett, 108 Mass. 302. Commonwealth v. Ashton, 125 Mass. 384. There is an exception where these words may by their generality embrace cases falling within its literal terms, which are not within its meaning or spirit, and where such facts must be alleged as will bring the charge within the meaning and intent of the Legis lature. Commonwealth v. Barrett, 108 Mass. 802, 808, and cases cited. This exception can have no application to the complaint in the case at bar. The prohibition against taking smelts in any other manner than by “ artificially or naturally baited hook and hand-line ” is absolute. The complaint not only charges the act of taking them otherwise to have been done unlawfully by the defendants, but sets forth the means by which they did it, viz. “ by means of a seine and net,” which is certainly another manner than that permitted by the statute.

The defendants further contend that the District Court had no jurisdiction of the offence, and that they could only have been proceeded against by indictment. The Pub. Sts. c. 217, § 2, provide that all fines and forfeitures recovered in criminal prosecutions or exacted as a punishment for any offence, etc., “ may, unless otherwise especially provided by law, be prosecuted for and recovered by indictment in the Superior Court, or when the amount or value thereof does not exceed one hundred dollars by complaint before a police, district, or municipal court,” etc. The defendants therefore urge, that, as the Public Statutes make no other especial provision therefor, they could only be prosecuted for a forfeiture to the amount alleged in the complaint by an indictment in the Superior Court. The St. of 1885, c. 822, largely extended the jurisdiction of district and police courts by enacting that “the original jurisdiction of all district and police courts, in addition to the jurisdiction otherwise conferred, shall include all crimes under the degree of felony, except conspiracies and libels, and cases where a prosecution by indictment or information is required by law.”

Jurisdiction to punish for a crime by fine or imprisonment, when conferred upon the district courts, is a special provision by law for the prosecution of the offence; and it is only when no such provision is'made, that there can be a recovery of the fine by indictment. There is no general provision of law requiring a prosecution by indictment or information of an offence punishable by a fine, and the case ’at bar does not therefore come within the exception of the St. of 1885. Upon this contention of the defendants, the case of Commonwealth v. Murray, 144 Mass. 170, is quite decisive. The Pub. Sts. c. 154, § 50, gave to the Municipal Court of the city of Boston jurisdiction of “all crimes under the degree of felony, except . . . where a prosecution by indictment or information is required by law,” in substantially the same terms by which a similar jurisdiction has now been conferred upon district and police courts by the statute of 1885. It was held in that case, that, under the Pub. Sts. c. 217, §§ 1, 2, a prosecution by indictment was not required by law of the offence of keeping intoxicating liquors with intent to sell unlawfully, and that the Municipal Court of the city of Boston had jurisdiction of an offence under the degree of felony, where the punishment might be a fine of $500 or imprisonment for six months.

Exceptions overruled.

This section is as follows: “ Whoever takes a smelt in any other manner than by artificially or naturally baited hook and hand-line shall forfeit one dollar for each smelt so taken; and in all prosecutions under this section the burden of proof shall be upon the defendant to show that such smelt or smelts taken by him, the catching of which is complained of, were‘legally caught.”