Charles W. Lovett, Petitioner &c., 16 Pick. 84

Wilde J. afterwards drew up the opinion of the Court. This is a petition for- a writ of certiorari, upon a conviction of the petitioner, before a justice of the peace, for neglect of duty as a private soldier in the militia ; and the first error assigned relates to the form of the complaint. It is objected that the complaint does not sufficiently set forth the supposed offence, and that it ought to show the occasion or purpose of calling out the company., It is a sufficient answer to this objection, that the offence is charged in the words of the statute, in the form therein prescribed.

It was not the intention of the statute, that ap offence should be set out with technical precision; and to prevent objections of this description, the form of the complaint and the manner in which the offence is to be charged is prescribed. The second error assigned is, that the evidence was not sufficient to support the charge.

By the report of the evi dence, it appears that the petitioner’s name was borne upon the company’s roll; that he was duly warned, and did appear with the company on the day appointed ; that he marched into the line of the regiment and was afterwards missing, and did not again parade with the company. And it is admitted, in the exception, that he had no leave to depart, from Lieutenant Stone, the commanding officer of the company. This evidence fully proves the charge ; for no officer except the commanding officer of the company, had any authority to give leave of absence.

If a senior officer should give any order to that effect, it must be made upon the officer of the company. The remaining objection is, that the clerk was not duly appointed. This objection also we consider unfounded. Barton, the captain, was authorized to make the appointment of sergeant and clerk, he not having received his discharge until after the time when the appointment was made. As to the supposed irregularity of the appointment in other respects, that depends upon parol evidence, which is inadmissible to contradict or control the written evidence of the appointment.

That being in common form, we can take no notice of the parol evidence ; and we give no opinion, whether it proves any irregularity or not. Petition dismissed.