Stratton v. Commonwealth

Dewey, J.

The present application for a writ of certiorari must be maintained, if at all, upon the ground of the irregularity of the proceedings in the cause, apparent upon the record and documents properly before us upon a return of the same by the magistrate. The sufficiency of the evidence to sustain the complaint is not before us, and ought not to be revised by us; it not appearing on the record that any objection to the competency of the evidence was taken before the justice. Cousins v. Cowing, 23 Pick. 215. This is especially true in a case like the present, where the whole case, upon the facts as well the law, was open to an appeal to the court of common pleas. Rev. Sts. c. 143, $ 8.

*220The counsel for the government go further, and insist that it maybe doubtful whether this court should, in any case, grant a writ of certiorari, to remove the proceedings of a justice of the peace, where the more full and equally adecpmte remedy .by appeal has been given by statute. The authority vested in this court, by Rev. Sts. c. 81, § 5, to grant writs of certiorari, is very broad, and may embrace cases arising like the present; but ordinarily this mode of revising the doings of the justice, and raising any legal objections to his proceedings, will be much less prompt or effectual in protecting the rights of parties, than taking an appeal, which will at once supersede the judgment or sentence of the justice, and transfer the case to another tribunal. Without, however, particularly considering or deciding that point, we have looked at this case as it is presented to us by the petitioner, as arising upon the proceedings set forth by him, and upon which he relies to sustain his application for a writ of certiorari. The point here taken is, that the complaint is defective, in not setting forth any distinct offence accompanied with those particular allegations essential to the proper charging of a single offence; it being only the general allegation that the party was a common railer and brawler.

An indictment must charge the offence with as much certainty as the nature of the case will admit. Hence, in most cases, it is necessary to state in detail all the essential particulars constituting the offence. This will include time and place, and usually the name of the individual whose rights of person or property have been violated, and other circumstances giving the offence a distinct character. But this general rule has always had its exceptions. From the very nature of the case, where the offence consists, not in a single act, but of a series of acts, and this continued series of acts is an essential element in the crime, it would seem that the charge might properly be general in its character, and need not specify the details of the various distinct acts, which will establish the guilt of the party. The cases long distinctly recognized as within the exception are those of one indicted *221as a common barrator, or as a common scold; and it has been sometimes said that these were the only exceptions. But various other cases, obviously falling within the principle, have also been held to be within the exception; as the offence of keeping a common disorderly house, or common gaming house. Rex v. Higginson, 2 Bur. 1232. So the offence of being a common seller of spiritous liquors without license, where the indictment charged the offence generally, was held, from the nature of the offence, to be well charged. Commonwealth v. Pray, 13 Pick. 359. We have no doubt, in looking at the present case, that from the very nature of the offence here charged, it being not a particular act, but a continued series of acts or habit of life, that constitutes the offence of being a common railer and brawler, it is properly set forth by the same general description of the crime charged, that would be good in case of a common barrator or common scold. All the reasons for permitting it in those cases apply, with equal force, to the case of the offence of being a common railer and brawler. We perceive that in the case of Rex v. Cooper, 2 Stra. 1246, cited foi; the petitioner, a different opinion was held as to an indictment against one as a common brawler; the same opinion is, to some extent, sustained by other cases referred to in 1 Chit. Crim. Law, 229, 230. We think the better rule, and one supported by analogy and good sense is, that in a prosecution before a justice of the peace for the offence of being a common railer and brawler, as made punishable by the provisions of Rev. Sts. c. 143, ■§>§ 5, 6, by a sentence of commitment to the house of correction or workhouse, the complaint is sufficient in ,aw if it charge the offence generally, and without setting out any distinct acts of railing or brawling.

Petition dismissed.