and such ef fendant that the facts proved did not amount to an indictable of fect is pro duced by the dis charge, he an indicta fence. Per Cur. Parker, C. J. If the indictment were for a nuiis guilty of sance, the authorities cited by the defendant's counsel would ble offence. clearly show, that it could not be sustained; for the most that could be made of it would be a private nuisance, for which an action on the case only would lie. But we think the offence described is a misdemeanor, and not a nuisance. It was a wanton act of mischief, necessarily injurious to the person aggrieved, after full notice of the consequences, and a request to desist. The jury have found that the act was maliciously done. It's not an indictable Now the facts proved in the case, namely, the defendant's previously knowledge that the woman was so affected by the report of a gun, as to be thrown into fits, the knowledge he had that she was within hearing, the earnest request made to him not to discharge his gun, show such a disregard to the safety and even the life of the afflicted party, as makes the firing a wanton and deliberate act of mischief. Judgment on the verdict. IV. OF THE OFFENCES WHICH ARE NOT INDICTABLE. 1. THE STATE V. BURROUGHTS, Sept. T. 1802, 2 Halst. N. J. Rep. p. 427. The defendant was indicted and convicted for taking up and offence at removing a corner stone in the boundary line between A. and B. with intent to injure and damage the said B. common law to re move a cor ner stones Per Cur. The judgment must be reversed. The offence in a bounda charged is exclusively a private injury, and in no way concerns ry line, with intent to in the public farther than any other private wrong, jure a per son. Where one 2. COMMONWEALTH V. WARREN, Nov. T. 1809, 6 Mass. Rep. 72. The indictment in this case against the defendant states, that by lying on he being an evil disposed person, and contriving and intending ly defrauds another of one Benjamin Adams to deceive, cheat and defraud, fasely prehis property tended and affirmed to the said Adams, that his the defendthe injury is a civil one ant's name was William Waterman, that he lived in Salem, and and an in there kept a grocery store, that he wished to purchase on credit cannot be of Adams fifty pair of shoes, giving his own note as security supported as for a pub therefor: that Adams, giving credit to his false pretences and lic offence. affirmations, sold him the shoes and took as security the note of dictment the defendant, subscribed by him with the name of William Waterman. Upon conviction, the defendant moved in arrest of judgment, on the ground that the facts charged in the indictment, did not amount to a public offence. Per Cur. Parsons, C. J. We cannot consider the facts stated in the indictment, (however injurious they were to Adams,) as constituting a public indictable offence. Judgment arrested. 3. HUNTER V. THE COMMONWEALTH, April. T. 1816, 2 Serg. & Rawle's Penn. Rep. 298. an indicta Keeping a Per Cur. Tilghman, C. J. The keeping of a disorderly disorderly house is not indictable, unless it be laid as a common nuisance; house is not because a house may be disorderly without being injurious to ble offence to any but its inhabitants; and it is the injury done to the public, laid as a which is the essence of the offence. 4. THE STATE V. KIRBY, July T. 1809, 1 Murphy's North Ca. Rep. 254. unless it be common nui sance. Nor pro it be laid as It was charged in the indictment, that the defendant swore fane swear several oaths in the court yard, during the sitting of the court, ing, unless to the great disturbance and common nuisance of the citizens a nuisance. generally attending said court. The defendant submitted, and a motion was made to arrest the judgment, on the ground that the facts thus charged did not constitute an indictable offence. Per Cur. Locke, J.. We are of opinion, that although profane swearing, of itself, and independent of the disturbance and injury which it may produce to those who hear it, may not form the subject of an indictment, yet, wherever the bill charges the swearing as a nuisance, and there is evidence to satisfy a jury that it has produced this effect, we can discover no reason why the offence should not be indictable. 5. THE STATE V. BRUNSON AND MILLER, Feb. T. 1831, 2 Bailey's S. Ca. Rep. 149. The defendants were convicted for living in adultery. Motion in arrest. Adultery is not an in dictable of fence in lina. Per Cur. Johnson, J. Mr. Justice Blackstone classes adul- south Caro tery and fornication among the offences against God and religion, which belong exclusively to the jurisdiction of the spiritual court; 4 Bl. Com. 65. And whatever former opinions may VOL. VI. 2 An indict B. with force and have been, the modern writers all agree that they are not indictable at common law. The husband of an adulteress has his remedy by action against her seducer; and beyond this the common law furnishes neither remedy nor punishment. Our own books of reports contain no instance of such a prosecution; nor do I now remember ever to have heard of one in our courts. On the contrary, I know it has been the received opinion of the bar, and the bench, for the last twenty-five years, that it could not be maintained. Motion granted. 6. SIMPSON V. THE STATE, Dec. T. 1833, 5 Yerger's Tenn. Rep. p. 356. ment charg Simpson, the plaintiff in error, was convicted on an indicting that A. ment, which was in substance as follows: That William Simpson, laborer, with force and arms, being arrayed in a warlike manner, in a certain public street or highway, situate, &c. una warlike lawfully, and to the great terror and disturbance of divers good citizens, did make an affray in contempt of the law, &c. anns being arrayed in manner in a certain pub lic street, unlawfully Per Cur. Whyte, J. After reviewing the English cases, says, and to the "On the authorities, therefore, I am of opinion, that this record great terror of an indictment against the plaintiff in error, does not contain a charge of an affray, or any other specific offence cognizable at make, &c. common law by indictment. of the peo ple, an af fray did does not charge an indictable offence. The offence of cutting and gird ling fruit 7. BROWN'S CASE, June T. 1824, 3 Greenl. Me. Rep. 177. See The defendant was convicted for maliciously girdling, cutting and destroying fruit trees. Motion in arrest, because the facts. alleged in the indictment did not constitute any offence at comtrees is not punishable mon law. by indict ment at common law. An indict ment not The court observed that the offence was not indictable except under the statute of the state, which limited the remedy to one year from the commission of the offence, which term had expired. Judgment arrested. V. FINDING OF, BY THE GRAND JURY, See post, p. 17. 1. COMMONWEALTH V. SMITH, June T. 1812, 9 Mass. Rep. 106, 3d ed. (110.) S. P. Low's CASE, 4 Greenl. Me. Rep. 439. Per Cur. Sewall, J. Indictments may not found by twelve twelve of good and lawful men, at least, are void and erroneous at com- found by mon law; and the circumstance, that it was found by twelve the grand men, is stated in the caption of every indictment according to jury, is void. the English forms and practice. 2. It is a suffi tion to an in an offence, cient objec dictment for COMMONWEALTH V. RYAN, March T. 1809, 5 Mass. Rep. 90. The defendant was indicted and convicted for keeping a table in his house for the purpose of playing billiards for hire, contrary to the statute. The defendant moved the court that the indictment against him might be quashed; the penalty enuring to the town of Boston; and the foreman of the grand jury who found the bill against him, being at the time of the finding a tax- the town able inhabitant of said town. The defendant moved that the where the indictment might be quashed. to which the law annex es a fine for the use of offence is committed, that the fore man of the grand jury who found the indict Per Cur. Parsons, C. J. This interest at common law, would othe be a sufficient objection. VI. FORM OF. (A) GENERAL REQUISITES. 1. COMMONWEALTH V. GILLESPIE, Jan. T. 1822, 7 Sergt. & Rawl. Penn. Rep. 474, 475. ment is a taxable in habitant of such town. ment must contain posi tive and cer tain allega facts which Per. Cur. Duncan, J. The indictment must contain a certain An indict description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation; lest the grand jury should find a bill for tions of the one offence, and the defendant be put on his trial for another constitute without any authority; so that the court may see a definite of the crime. fence on record, that they may apply the judgment, and the punishment which the law prescribes; and so that the defendant's conviction or acquittal may insure his subsequent protection; that he may be enabled to plead it in bar of any subsequent proceedings. 2. with plain THE STATE V. CHERRY, Jan. T. 1819, 3 Murphy's N. Ca. R. 8. Per Cur. Taylor, C. J. An indictment ought to contain a Expressed description of the offence, which the prisoner is called upon to ness, brevi answer, expressed with plainness, brevity and perspicuity, and ty and per accompanied with those essential circumstances which concur to ascertain the fact and its nature. spicuity. But the words and such as are 3. M'LAUGHLIN V. THE COMMONWEALTH, Feb. T. 1834, 4 Rawl. Per Cur. Kennedy, J. It is not necessary that the words or terms used terms used in framing indictments, should be always such as to need not be have been adopted and approved by the best authors or lexicographers; it is sufficient if they have received from common use a fixed, precise and definite meaning, and according to such best authors meaning import clearly what is sufficient to make out the charge, and lexicog raphers. and to render it certain. adopted and approv ed by the 4. An indict not charge THE STATE V. O'BANNON, Jan. T. 1829, 1 Bailey's S. Ca. Rep. 144. S. P. SCOTT V. THE COMMONWEALTH, 6 Sergt. & Rawle's Penn. Rep. 225. Per Cur. Johnson, J. An indictment must not charge the of ment must fence disjunctively. An allegation, that the defendant did the offence take and convey away, or cause to be taken and conveyed away, disjunctive &c., held bad on motion in arrest of judgment. ly No implica tion or equi indictments (B) INTENDMENT IN SUPPORT of. STATE V. BRADLEY, 1 Hayw. N. Ca. Rep. 403. S. P. Coм- Haywood, J. We cannot imply that one thing is tantamount, valent is al or equivalent to another, in indictments. Were the judges allowable in lowed this power of implication, they might whenever they thought proper, construe the offence proved to be tantamount or equivalent to that laid in the indictment, when according to strict propriety and common acceptance, it was essentially dif ferent; and a defendant who had prepared himself to justify the charge as laid, might find himself surprised with evidence constructively tantamount, though not properly and strictly appli cable to the charge. The cap tion of an in (C) OF THE CAPTION. 1. M'CLURE V. THE STATE, Jan. T. 1829, 1 Yerger's Tenn. Rep. 208. Conviction for murder. Per Cur. Whyte, J. Several objections have been taken to |