Commonwealth vs. Charles Moore, 11 Cush. 600

Merrick, J. The indictment upon which the defendant was convicted is manifestly imperfect, and Obnoxious to several objections which have been alleged against it. It is very in artificially constructed, containing in one count allegations descriptive of two distinct offences, a part of them adapted to a prosecution for keeping a house of ill fame, and others appropriate to the letting of a tenement to be used as a place of resort by lewd and lascivious persons for the purpose of prostitution. Rev. Sts. c. 130, § 8 ; Commonwealth v. Harrington, 3 Pick. 26; Smith v. The State, 6 Gill, 425.

It is apparent, however, upon a careful examination of the whole, that the latter is the offence of which the defendant was accused, and for which the grand jury intended to make their presentment. The other allegations may, therefore, be disregarded and dismissed as surplusage. Of the errors and defects in the indictment, there are two for which the defendant’s motion in arrest of judgment must be allowed. In the first place, there is no proper averment of the time of the commission of the offence. Such an averment is indispensable.

The allegation is that the defendant, on the fifteenth day of April, and during five months next before and preceding that day, was in possession of a certain described tenement, and then and there let out the same to hire. The reference by the words “ then and there,” is necessarily to the whole time mentioned, and not to any particular day. This will not do; it is altogether too loose, vague, and indefinite.

The act complained of was not a continuing offence, like that of being a common seller of spirituous liquor, or the keeping of a house of ill fame,—the latter of which the pleader, in framing the indictment, obviously had in his mind—but was a single, distinct, and separate transaction. A specific time, therefore, ought to have been alleged; a day certain stated. And without such statement the indictment is defective and insufficient. Archb. Crim. Pl. 37; 1 Chit. Crim. Law, 217; 2 Hale P. C. 177; State, v. Baker, 4 Redingt. 52.

The indictment is also fatally defective in omitting to state the name of the person to whom the lease was made by the defendant, or that such person was to the jurors unknown, and that the lease was received and accepted by the individual to whom it was made. An acceptance of the lease was essential to the commission of the offence, which could not indeed be consummated without it. It is like the case of the unlawful sale of spirituous liquor, concerning which it has been determined that the name of the vendee must be given in an indictment, or a satisfactory reason assigned for its omission. Commonwealth v.

Thurlow, 24 Pick. 379. It is never sufficient to charge a defendant generally with having committed a crime, as, that he robbed J. S., or stole his goods ; but all the facts and circumstances constituting the offence must be specifically set forth. And if any lad 01 circumstance which is a necessary ingredient in an offence be omitted in an indictment, it is vitiated by such omission, and the objection may be availed of by the defendant on a motion in arrest of judgment. Archb. Crim. Pl. 41, 42; 1 Chit. Crim. Law, 227. Judgment arrested.