Commonwealth v. Twitchell

58 Mass. 74

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1849
• Status: Published

Opinion

Metcalf, J.

1. It is unnecessary to inquire, in this case, whether duplicity in an indictment is a cause for arresting judgment; because we are of opinion that the allegation, in this indictment, that the defendant “ did set up and promote ” an exhibition, does not make the indictment objectionable for duplicity, but charges only one offence. In Commonwealth v. Eaton, 15 Pick. 273, an indictment, which alleged that the defendant “ did unlawfully offer for sale, and did unlawfully sell ” a lottery ticket, was held good, on demurrer; and we cannot distinguish that case from this. So an indictment, which avers that the defendant “ did write and publish, and cause to be written and published,” a malicious libel, is not bad for duplicity. 2 Gabbett Crim. Law, 234; 3 Chit. Crim. Law (4th Amer. ed.), 877, et seq.

2. The Rev. Sts. c. 58, impose a penalty on any person who shall set up or promote any exhibition, to which admission is obtained by payment of money, without a license first obtained; and this indictment alleges that the defendant set up and promoted such an exhibition, without first being duly licensed therefor, and contrary to the form of the statute. This sufficiently shows that the exhibition was unlawful, and was unlawfully set up and promoted, without an express allegation that it was so. When the fact laid in an indictment appears to be unlawful, it is not necessary to allege it to have been unlawfully done, unless it be part of the description of the offence, as defined by statute. If the Rev. Sts. c. 58, had imposed a penalty on any person who should unlawfully set up or promote an exhibition, or should set up or promote an unlawful exhibition, this indictment would have been defective. 2 Hawk. c. 25, § 96 ; 1 Stark. Crim. Pl. (2d ed.) 78, 79.

3. The allegation that the'exhibition purported to be an exhibition of certain performances, is all that was necessary, and perhaps all that was safe, to be inserted in the indictment. An allegation that the exhibition actually was what it purported to be—that is, what the defendant represented it to be—might have enabled him to escape through a variance between the allegation and the proof, though the exhibition, as made, was contrary to the statute. The show often falls short of the promise in the show bill.

Exceptions overruled.