Daily Kennebec journal., 1914-02-27

the statute. Upon a motion in arrest
a1 OF 1qdgment the the full full % opinion on, OF q, the
ment is sufficient. 1t is true that the
prohibition, and the definition of the
offense, by the statute of 1858, Section
! 10, are in the same section. But the
| provisions are in distinct and separate
clauses. as much as in the statute of
1S5S. In the case OF state V. Casey,
| As Maine, 435 the word section was
| used inadvertentiy in the opinion of the
| Court. owing. probably, TO the fact that.
in the statute then under consideration,
the provisions were in distinct sections.
| But whether in distinct sections, or
clauses, can make no difference The Of
fense. like that of being a common sell
er of intoxicating liquors. is made suf-
| ticiently certain by the terms used in
! the enacting prohibitory clause 1t
should here be noted that the offence
and the definition are in the same sec
! tion. Yet the definition was not nee
| esSary.
Commonwealth V. Ashley, . Gray,
S56, was an indictment in the language
of the statute for keeping house of
/ of the opinion that this is case in
| which the indictment so framed, is
sufficient; because no allegation OF any.
/ thing more than these words, ex vi
+ terminorum, import, is necessary in or
der to show that the defendant has
committed the statutory offence" We
think the causes stated in the case be-
/ fore us come clearly within the reason
here stated. The statute says: Any
sheriff who shall wilfully or
corrupt1y refuse or neglect to perform
any of the duties required by this sec
1 tion shall be punished" etc, and the
charges say that the relator did will
/ fully or corruptly refuse or neglect to
/ perform these duties; no allegation OF
/ anything more than these words. eX vi
| terminorum, is necessary to show that
the relator in the case before us has
/ committed the statutory offence. Then
the court states the rule: According
| to the rule of pleading, laid down in
/ Hawk, c. 25, Sec. Ill. it is sufficient,
in an indictment. to pursue the very
act, in the doing of which the offence
| consists, is fully. directly and express
| ly- alleged, without any uncertainty or
ambiguity. That is done in the pres
ent indictment"
| In Commonwealth Y. Maley, 119 Mass.
/ 347. the court states the rule in this
way: Where statute embraces ali
the ingredients of the offence intended
| to be punished. and the language used
described such offence with legal GER
| tainty. an indictment or complaint ma
| the statute" In Commonwealth V.
| Dyer. 12S Mass. 20, the rule is stated
! in this language: When. an offence
! is created by statute. which sets forth
| with precision and certainty all the ele-
mentS of the offence, an Indictment or
complaint is sufficient which charges
the offence in the words of the stat
ute" The statute in the language OF
which the present charge was made
sets forth with precision and certainty
all the elements of the offence with
reading of the statute will clear
ly show. and the charges would seem
to be sufficiently specific to sustain an
| indictment.
All these citations. it should be OBJ
served, relate to indictments or COM
plants for statute offenses involving
| definite acts of msfeasance, where par
| ticular acts might we'll have been
seem to be well established that those
| offenses can be set out in the language
of the statute or its equivalent. But
there is an exception 10 the RUE. Whlch
we find clearly stated in Commonwealth
VS. Barrett, los Mass. 302. The rule
and exception are stated as follows;
ut is a general rule that. where an Of
Tense is created by statute, an Indfet-
ment or complaint is sufficient which
charges the offence in the words of the
statute Commonwealth Y. Raymond,
81 Mass, 5es; There is an an g eAeeptlon at
ute say. by their generality. embrace
cases falling Within its literal terms,
which are not within its meaning or
| tended to be made penal is ascertained
| by reference to the context, and to 9TH
| er statutes in pari materia, and the IN
dictment or complaint must allege all
facts necessary to bring the case with
| in the meaning and intent of the Leg
( islature.
| 1t will be observed that the words of
the statute which we are considering
one specific offence and no more. No
other case could fall within its literal
terms. No other charge could be
/ brought under it, The only offence
specified in this statute is a failure to
act as the section commands: is a sin
| gle, continuing, habitual offence; pure
" statutory; nahum prohibitum: un-
known to the common law; embraces
| single charge-nonfeasanc and neith-
er concerns nor is concerned with any
other provision of the statute. 1t can
not be construed in paTi materia nor
with reference to the context The
meaning and intent of the Legislature
is clear. 1t does not, therefore, come
| within the scope OF the exception But
| it Is said the causes should have Speci-
| fled particular cases or refusal or neg
lect on the part of the relator; that.
under the causes assigned, he was un-
able to know from what place In the
county he would be called upon to con-
| front the witnesses against him. But
| this claim, under the offence charged
in this case. is speeious rather than
true 1t should be here noted that the
sheriff and his deputies are one in the
enforcement of the laws and protec.
tion of the people against infraction OF
| the laws. r. s. Chap. 81, Sec. 8 au-
thorizes the sheriff to appoint deputies.
''for whose official conduct and neglect
he is answerable." The causes charge
that he wilfully or corruptly refused or
~
iff in enforcing the prohibitory law in
the county of Cumberland over which
| his jurisdiction extended. DID he not
| know what he, himself, had done to
enforce, the prohibitory law? Enforce
ment is a specific, active performance
| of which the sheriff must have not only
absolute knowledge but in most cases,
record evidence. All it was necessary
! for him to do, when charged with nom
enforcement covering definite space of
| time, as in this case. was to bring forth
his records of enforcement, from every
part of the county covering the period,
with any other evidence showing just
what he had done, and his defence was
all in. Because every search and seiZ-
ure where warrant is issued is of
| record: every nuisance case Is of rec
ord every drinking house and tipping
house prosecution is of record; every
single sale procedure is of record; every
charge for illegal deposit or keeping
is of record. Every one of these va
rious forms of prosecution, If insti-
tuted, was particularly within the
knowledge Of the sheriff. and not in
the knowledge of the Legislature. Ac-
cordingly, the general charge OF non
| feasance covers every one OF these OF
fences, and the answer to every charge
was absolutely within the knowledge
and easy procurement of the relator.
The charge did not say, nor was 1t in
tended to say, that the relator had not
enforced the law in particular towns or
cities nor could 1T be the whole truth