State v. Rollins

55 N.H. 101, 1874 N.H. LEXIS 22

• Court: Supreme Court of New Hampshire
• Decided: December 18, 1874
• Status: Published

Opinions

This complaint is doubtless very inartificially and loosely drawn, but I am inclined to think it must nevertheless be sustained, as to the charge of making a brawl and tumult. It is settled that a complaint charging the making of a brawl and tumult, in the words of the statute, without any further specification of the facts relied on as constituting the offence, is sufficient. State v. Perkins, 42 N.H. 464. This complaint distinctly alleges that the defendants did make a great brawl and tumult, which is well enough, unless it is vitiated by what follows. The next sentence contains what appears to be an independent charge of certain specific acts, — that is, stamping, hissing, using loud language, etc. But this is not connected, either with what precedes or follows, in such way that it can be said to constitute a specification of any offence which the defendants are called upon to answer. Then comes another general charge, that they were guilty of rude, indecent, and disorderly conduct. Rude, indecent, and disorderly conduct is a separate and independent offence, under the same section of the statute. But that offence is not sufficiently charged in the complaint — State v. Peirce, 43 N.H. 273; so that the complaint is not, after all, open to the objection of duplicity. Com. v. Tuck, 20 Pick. 356; State v. Palmer, 35 Me. 9. Besides, the fault of duplicity, if it is ever to be regarded as anything more than one of mere form — 1 Bish. Cr. Prac., sec. 196 — is certainly nothing more, in cases of misdemeanor in this state — State v. Marvin, 35 N.H. 22 — and might be remedied by amendment under Gen. Stats., ch. 212, sec. 13. It follows, that all of this complaint, after the words "did make a great brawl and tumult," may be rejected as surplusage, and then the complaint may be sustained as setting out a sufficient description of that offence.