Commonwealth v. Kelly

Metcalf, J.

The first section of St. 1855, c. 405, declares all buildings, places or tenements, used for the illegal sale or keeping of intoxicating liquors to be common nuisances, and that they are to be regarded and treated as such. The second section prescribes the punishment of any person keeping or maintaining any such common nuisance. The indictment sets forth the offence in the words of the statute which creates it. And this is a case in which we think an indictment may well be so framed • because no allegation of anything more than the words of the statute necessarily import is required in order to show that the statute offence has been committed, by the defendant. The case, in our judgment, cannot be distinguished from United States v. Gooding, 12 Wheat. 473, 474; Whiting v. State, 14 Conn. 487; Commonwealth v. Pray, 13 Pick. 359 ; and Commonwealth v. Ashley, 2 Gray, 356. Each of these cases was, like, this, an indictment for an offence created by a statute which fully and plainly described the act or acts that constituted the offence thereby made punishable. But in Commonwealth v. Clifford, 8 Cush. 215, cited by the defendant’s counsel, the indictment was for robbery, a common law offence, for which the form of indictment had long been established, but for which offence a statute had provided a punishment, without setting forth all the several acts and facts which constituted robbery. In that case, it was very clear that the indictment, which contained only the words of the statute, omitting allegations of matters that were necessary to constitute robbery, was insufficient to sustain a judgment; just as an indictment for larceny, under the Rev. Sts. c. 126, & 17, would be held insufficient, which should merely allege, in the words of that section, that A. committed the offence of larceny, by stealing a horse, the property of B. Exceptions overruled.