Thns, it is sufficient to charge a person with being a common barrator, or common scold. And it is not necessary to set forth any particular acts of barratry or of scolding, for it is the general practice, and not the particular act, which constitutes the offence. So it is sufficient to charge a person generally with keeping a house of ill fame, a disorderly house, or a common gaming house.'

The several acts may be indicted and punished separately, but the keeping the house is a distinct offence, and as such liable to punishment. When an act is made penal, with certain exceptions aud limitations embraced in the same clause of the statute, so as to be descriptive of the offence intended to be punished, it is necessary to state in the indictment that the act was done, and to negative those exceptions and qualifications, and that the precise statute offence cannot otherwise be described and specified."

Because, if all the facts alleged in the complaint may be true, and yet the defendant be not guilty, the complaint is not sufficient.

But where the exception is only a graduation of punishment to different degrees of the same species of offence, and the complaint sets forth the character of the offence as to its aggravation with sufficient distinctness, and thus indicates the punishment to be awarded, the complaint is not objectionable on the ground that no criminal offence is charged. It is not like those cases where every averment contained in the indictment may be true, and yet the defendant be guilty of no legal offence."

Thus, a complaint for a violation in Massachusetts of what was known as "the fifteen gallon law" of that State (1838, ch. 157,) must aver a sale of a "less quantity than fifteen gallons," and an averment that the defendant "did sell one pint" is not sufficient. Because, if fifteen gallons were sold, it would be true that one pint and many pints were sold.*

Averments of immaterial facts may be rejected as surplusage, and need not be proved at the trial, unless they contain matters of description."

Surplusage is an averment not contradicting other averments in the complaint, not descriptive of the identity of the charge, or of any thing essential to it, and not tending to show that an offence was committed."

'Davis's Prec. of Indictments, 140, 198. 223 Pick. 279-20 Pick. 362-3-2 Pick. 139-1 Met. 263.

31 Met. 263-4.

423 Pick. 280.

$1 Met. 260-20 Pick.364-15 Maine 476. 63 Stark. Ev. 1529.

In cases of larceny, the value of the articles taken should be set forth.' The intent should be alleged, and where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be not only alleged but proved. But where the act is in itself unlawful, the law infers an evil intent, and the allegation of such intent is merely matter of form.2

No indictment or complaint shall be quashed, nor judgment thereon be arrested or affected, by reason of the omission or misstatement of the title, occupation, estate, or degree of the defendant, or of the name of the city, town, or county of his residence; nor by reason of the omission of the word " feloniously," or of the words "force and arms,' or of the words "against the peace," or the omission to charge any offence to have been committed, contrary to the form of the statute or statutes; provided, that such omission or misstatement do not tend to the prejudice of the defendant."

When written instruments form part of the gist of the offence, they should be set out in full, introduced by words to this effect, "of the tenor following," or the like.

If two distinct charges be set forth in the same complaint, it will be fatal for duplicity.*

Where, however, two crimes are of the same nature and necessarily so connected that they may, and when both are committed must constitute but one legal offence, they should be included in one charge. Familiar examples of these are, assault and battery and burglary. An assault and battery is really but one crime. The latter includes the former. A person may be convicted of the former, and acquitted of the latter, but not vice versa. They must therefore be charged as one offence. So in burglary, where the indictment charges a breaking and entry with intent to steal, and an actual stealing, the jury may acquit of the burglary and convict of the larceny, but cannot convict of the burglary and larceny as two distinct offences. The latter is merged in the former, and they constitute but one offence."

A charge of "an endeavor to seduce, entice, and stir up to commit. mutiny," and "an endeavor to seduce, entice, and stir up to commit traitorous and mutinous practice," is not bad, because the endeavor,

19 Met. 135.

26 East, 464.

R. S. ch. 172, sec. 38.

42 Mass. 163-4-8 Met. 247.

$20 Pick. 361.

though a conclusion from an infinite variety of facts and circumstances, is but a conclusion of fact, is itself a fact, admitting of no definition or description.

So if an indictment charge that the defendant did presume to be a common seller, &c., and did sell, &c., but one offence is charged.' There must be no material allegations repugnant to each other. As to the joinder of several defendants in one complaint, the general rule seems to be that, "where the same evidence, as to the act which constitutes the crime, applies to two or more, they may be jointly indicted. Nor is it an objection that the fact proved against two or more, constitutes a distinct species of legal and technical offence. where a wife, acting with a third person, maliciously takes the life of her husband. It is murder in the one, petit treason in the other; yet they may be indicted together. So where the same evidence proves one guilty as principal, and another as accessory before the fact, in felony, they may be jointly indicted."

112

As

Where several defendants are so joined, they are not entitled of right to be tried separately, but they may be tried jointly or separately in the discretion of the court.3

It must follow, from what has been already said, that a warrant cannot be issued on a complaint setting forth that the complainant "has probable cause to suspect" that the defendant is guilty of a certain crime or offence, if the offence complained of is within the final jurisdiction of the magistrate, unless the statutes confer such authority by express language. But where the jurisdiction is only initial, the rule is otherwise, because suspicion being a good ground to warrant the magistrate to commit or hold to bail, it follows, that it is sufficient to constitute the substantive matter and principal averment in the complaint, upon which the warrant is granted. Neither does the rule apply to search warrants, for they must necessarily be based on suspicion."

What disqualifies a witness, is a question of no minor importance. This point we have considered at some length in chapter viii, page 60, of this volume, and to that we refer. We may say here, however, that it is well settled that the justice may refuse to issue a warrant on

117 Maine, 154-9 Met. 569.

22 Met. 191.

316 Maine, 293.

416 Pick. 215.
Ib.

a complaint, where he has final jurisdiction, if he is satisfied that the charge is the result of malice and corruption.

Accessories. Offenders may be complained against as accessories before or after the fact. There can be accessories only to felonies. In misdemeanors, all parties concerned are principals.

The term "felony" in this connection, is construed to include murder, rape, arson, robbery, burglary, maims, larceny, and every offence punishable with death or by imprisonment in the State prison.'

Every person who shall aid and abet in the commission of any felony, or who shall be accessory thereto before the fact, by counselling, hiring, or otherwise procuring the same to be committed, shall be punished in the same manner, which is or shall be prescribed for the punishment of the principal felon."

Every person, who shall commit the above crime may be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction, or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to justice; and shall, in the last mentioned case, be punished in the same manner, as if convicted of being an accessory before the fact."

Every person not standing in the relation of husband or wife, parent or child, to the principal offender, who shall harbor, conceal, maintain, or assist any principal felon, or accessory, before the fact, to any felony, knowing him to be such, with intent that he shall avoid or escape from detection, arrest, trial, or punishment, shall be deemed an accessory after the fact, and shall be punished by imprisonment in the State Prison, not more than seven years, or in the county jail not more than one year, and by fine not exceeding one thousand dollars; but, in no case, shall such punishment exceed the punishment to which the principal felon on conviction would have been liable.*

Every person, who shall be accessory after the fact to any felony, may be indicted, tried and sentenced in any court or county, having jurisdiction of the principal offence, whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to justice.

IR. S. ch. 167, sec 2.

2Ib. sec. 3.

4Ib. sec. 6.
R. S. ch. 167, sec. 7.

Ib. sec. 4.

In cases against accessories, either before or after the fact, if the principal felony be committed in one county, and the offence of being accessory thereto be committed in another, the last mentioned offence may be indicted, tried, and punished in either of said counties."

No person shall be prosecuted for any offence, except treason, murder, arson or manslaughter, unless the indictment shall be found within six years after the offence shall have been committed; provided, that the offender shall not flee from justice, and that no other limitation for the prosecution of such offender is limited by law; but any period, during which the party charged was not usually and publicly resident within this State, shall not be reckoned as a part of the six years.2

No person shall be indicted and convicted of treason or misprision of treason, unless the indictment shall be found within three years next after the commission of the treason.3

Prosecutions for malicious trespass, mentioned after the fourth section of chapter 162, of the Revised Statutes, must be commenced within four years from the time the offence was committed.*

II. OF THE WARRANT.

When the complaint is made to the justice, if it shall appear to him, from the examination of the complainant and other witnesses, that the offence alleged has been committed, and that there is reason for believing the person charged to be guilty, he shall issue a warrant, stating the substance of the charge, and requiring the officer, to whom it is directed, forthwith to arrest the person accused, and bring him before such justice, or some other magistrate of the county, to be dealt with according to law; and in the same warrant, may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination."

We have previously stated that justices have the power, under the statute, without a warrant, to order the arrest of persons engaged in any affray, riot, assault or battery actually committed within his presence or view, and within his county. This authority arises from the neccessity of the case; but there should be no final commitment, until a formal complaint be made and a warrant issued.

1R. S. ch. 167, secs. 5, 7.

2Ib. sec. 15.

3R. S. ch. 153, sec. 5.

4R. S. ch. 162, sec. 14.

R. S. ch. 171, sec. 2-Ib. ch. 170, sec. 3.