Commonwealth versus George B. Phillips, 16 Pick. 211

Shaw C. J. delivered the opinion of the Court. This prosecution was originally commenced in the Police Court of New Bedford. By the act establishing that court, St. 1834. c. 33, § 5, jurisdiction is given of all cases arising under the laws regulating licensed houses, where the penalty does not exceed the sum of twenty dollars, and such prosecutions may be by complaint on information subject to the right of appeal to the next Court of Common Pleas. Probably the word “ on ” is a misprint and should be “ or,” that is, by complaint or information. But if it were otherwise it'would not alter the sense.

The question then is, whether, to sustain the validity of such a proceeding, a complaint and information on oath, “ that the complainant has probable cause to suspect that &c.,” is a complaint made with such reasonable and sufficient certainty as to be the ground of a judicial determination, conviction and sentence. The Court, upon some consideration, are of opinion, that it is not.

It is to be observed that this is a regular complaint, in a court of record, intended as the only formal ground or basis of charge, for the foundation of a judgment, conviction and sentence, and not merely to obtain a warrant for the purpose of arresting an offender, to answer to a more formal complaint, by indictment or information in another court. This is itself the basis of a substantive criminal prosecution, in a court of competent jurisdiction to try and decide it.

The salutary rule of the common law, that no one shall be held to answer to an indictment or information, unless the crime with which it is intended to charge him is expressed, with reasonable precision, directness, and fulness, that he may De fully prepared to meet, and if he can, to answer and repel t, is recognised and enforced, and extended to every mode in which a citizen can be called to answer to any charge of crime in this Commonwealth, by the highest authority known to the laws, namely, an express provision in the Bill of Rights, art. '2.

It declares, that no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substan dally and formally described to him. The reasonable degree of certainty required in an indictment, is so familiar, that it requires no authorities to support or illustrate it. 1 Chitty’s Criminal Law, 170.

Whilst it is important to the administration of public justice, and the reasonable execution of the laws, that indulgence should not be too readily yielded to mere technical niceties and subtilties, it is also important, that every man accused of crime should have a reasonable opportunity to know what the charge is, that he may not be called to meet evidence at the trial, that he could not have anticipated from the charge, that the Court may know what judgment to render, and that the party tried and either acquitted or convicted, may be enabled by reference to the record to shield himself from any future prosecution for the same offence.

This decision however will not affect a case where a com plaint is made to a justice of the peace, for the purpose of causing a party to be arrested and examined, and committed to prison or bailed, to answer to an indictment, or other proper form of charge in another court.

This practice of causing a warrant to be issued on suspicion, seems to be authorized by the terms of St. 1783, c. 51, § 1, which provides that justices of the peace shall examine into all homicides, murders, treasons, and felonies, done &c., and commit to prison all persons guilty or suspected to be guilty of murder or other capital offence, and hold to bail all persons guilty or suspected to be guilty of lesser offences, not cognizable by a justice of the peace.

Now if suspicion is a good ground to warrant the magistrate to commit or hold to bail, it seems to follow as a necessary consequence, that it is sufficient to constitute the substantive matter and principal averment in the complaint, upon which such warrant is granted. Nor will this decision in any respect call in question the validity and sufficiency of the usual form of search-warrant, or the complaint on which it is usually founded.

The usual form there, as I understand it, is, for the complainant to aver in direct terms, the felony and larceny, the fact that the property has been stolen, and then to aver that he hath cause to suspect, and doth suspect, that it is secreted in the house or place proposed to be searched.

But where, as in the present case, the complaint is the only basis of the proceedings, the only .statement of the offence, where it is made to a court of record, not with a view to an arrest, examination, and commitment, but with a view to a judicial investigation, trial, and conviction, as a case within its admitted jurisdiction, when in form and substance the conviction follows and affirms the matter of the complaint, and regulates the judgment to be entered, we think it is required, as well by the rules of the common law, as by the express requisition of the Declaration of Rights, that such complaint shall be, in a reasonable degree, certain, both in substance and in form ; and that the complaint under consideration, not having these requisites, is not sufficient to sustain the judgment rendered upon it; and the exception is allowed.

Judgment arrested.