Roulo v. Valcour

58 N.H. 347

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Foster, J.

In a criminal case, if the offence can be fully and plainly, substantially and formally, described without the recital of a special statute, by-law, or ordinance, the recital is by statute declaimed unnecessary. Gen. St., c. 242. s. 10. But of the validity of such a rule, in civil or criminal proceedings, we need not in this case inquire. We should not be justified in wasting, upon an unnecessary and barren question of pleading, the time that is needed for the consideration of subjects of some importance. When such a question can be readily avoided by an amendment, an amendment may be ordered. McDuffee v. P. & R. R. R., 52 N. H. 430, 459. And that is the proper course to be taken in this case.

The ordinance, like a foreign law, is to be proved by evidence addressed to the court, and not to the jury. Hall v. Costello, 48 N. H. 176, 179. The brief statement may be so amended as to properly set out the substance of the ordinance, and the ordinance may be proved at the trial term without disturbing the verdict. Whittier v. Varney, 10 N. H. 291, 304; Stevenson v. Mudgett, ib. 338, 343; Blake v. Sturtevant, 12 N. H. 567, 573; West v. Meserve, 17 N. H. 432; Jaquith v. Putney, 48 N. H. 138, 141; McKean v. Cutter, ib. 370, 376; Janvrin v. Fogg, 49 N. H. 341, 357; Bannon v. Angier, 2 Allen 128; Armstrong v. Percy, 5 Wend. 535; Williams v. Wood, 14 Wend. 126; Murphy v. Stewart, 2 How. 263. This is an application of the rule, that an error in a trial is corrected on a new trial of so much of the case as it is necessary to re-try in order to correct the error.

The amendment being made, and the ordinance proved at the trial term, there will be

Judgment on the verdict.

Stanley, J., did not sit.