Jennings v. Commonwealth

34 Mass. 80

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Shaw C J.

delivered the opinion of the Court. In the first place, there is no doubt the offence charged in this indictment is an offence at common law.

It is then contended, that the common law upon this subject is repealed. It is admitted that there has been no repeal in terms, but it is insisted, that xt has been repealed by implication, by a statute provision on the same subject, which necessarily repeals it by implication. St. 1793, c. 59, § 8. It is remarkable, that this question has not arisen before, it having been the practice, it is believed, ever since the passing of the statute, to indict for this offence at common law, and a form is given in Davis’s Precedents, from which it is said the form in this case was taken. But perhaps the point has never before been suggested.

In Commonwealth v. Cooley, 10 Pick. 37, it was held, that where a statute has revised the whole subject, made that a qualified offence which was one absolutely before, and limited the time for prosecution and the degree of punishment, and where the same purpose is to be accomplished, that of restraining the offence by punishment, the statute must be deemed a constructive repeal of the common law, because such must be presumed to have been the intent of the legislature But unless such intent is manifest, the repeal by implication cannot be inferred. And in applying that rule to the present case, upon a consideration of the statute, we think it furnishes no reasonable presumption, that it was intended to repeal the common law. The object and purpose of the statute seems to be different, in some respects, from that of the common law, and made alio intuitu. The provision is not only found in a statute made for the general purpose of relieving the poor and preventing pauperism, but the enactment in question is introduced by a preamble, setting forth the purpose, to prevent poverty as well as lewdness, and then goes on to provide a summary mode of breaking up houses of prostitution. The keeper is to be ordered for a short period to the house of correction, and for ever disabled from keeping lodgers or boarders, without a special license. If the purpose is punishment, it is nut the sole, and perhaps it may be reasonably inferred, not the leading purpose.

When a statute is made giving a new remedy, &c., either remedy may be pursued. At common law, keeping swine ip the city of London was a nuisance, and of course indictable. By the statute, the hogs were liable to be seized, &c. ; but it was held, that notwithstanding this statute, the offence was still indictable at common law. It was cumulative and not a substitute. Regina v. Wigg, 2 Salk. 460.

This case is distinguishable from Commonwealth v. Cooley, in several particulars. That indictment simply alleged the taking up dead bodies. But that had ceased, by force of the provisions of the statute, to be an offence of itself, and after the statute, taking up dead bodies under certain circumstances, as for instance by license, was made lawful. The common law therefore by which it was before unlawful, was in fact repealed. Besides, the sole purpose of both was punishment of the offenders.

2. As to the second objection, without a particular examination of the precedents or authorities to see whether the allegation, that the house was kept for lucre, is material, the Court are of opinion, that if one count in the indictment is good, which is sufficient to warrant the judgment given, and there is a general verdict of guilty, it is no cause of error that there is another defective count. The judgment and sen-fence will be considered as having been given according to the offence well charged and proved. Regina v. Ingram, 1 Salk. 384 ; Grant v. Astle, 2 Doug. 730 ; People v. Curling, 1 Johns. R. 320 ; Kane v. People, 3 Wend. 365. In this case, one count in the indictment is clearly good and sufficient in law to warrrant the judgment; and whether the other is bad or not, it is no cause for reversing the judgment on error.

Judgment approved.