III. OF THE OFFENCES WHICH ARE INDICTABLE.* 1. RESPUBLICA V. TEISCHER, 1 Dall. Penn. Rep. 338. S. P. 2. Whatever amounts to a public wrong is in dictable at commoa law. false measures or or more per COMMONWEALTH V. WARREN, Nov. T. 1809, 6 Mass. Rep. 72. Per Cur. Parsons, C. J. At common law, it is an indictable As using offence to cheat any man of his money, goods, or chattels, by weights, or using false weights or false measures: and by the English stata conspira ute of 33 H. 8. c. 1, passed before the settlement of this coun- cy by two try, and considered here, as a part of our common law, cheating sons, to by false tokens is made an indictable offence. The object of cheat. the law is, to protect persons, who in their dealings use due diligence and precaution, and not persons, who suffer through their own credulity, carelessness, or negligence. But as prudent persons may be overreached by means of false weights, measures or tokens, or by a conspiracy, where two or more persons confederate to cheat, frauds effected in either of these ways, are punishable by indictment. 3. COMMONWEALTH V. HARRINGTON, March T. 1825, 3 Pickg. Mass. Rep. 26. 29. The defendant was indicted and convicted for letting out and Letting a accommodating a part of a house with the intent that the business of prostitution should be carried on therein. It was con * Poisoning chickens, cheating with false dice, fraudulently tearing a promisory note, breaking windows by throwing stones at them, though a sufficient number of persons were not engaged to render it a riot, have heretofore been indicted in Pennsylvania. Per McKean, C. J.; Respublica v. Teischer, 1 Dall. 338. S. P. Commonwealth v. Eckert, 2 Browne, 251. An indictment may be maintained for a cheat of such a nature as may prejudice, although it does not charge that any person was actually defrauded; Respublica v. Sweers, 1Dall. 41. It is an indictable offence in a public officer, to impose false marks on stores provided for the army of the United States, whereby the public is injured; Respublica v. Powell, 1 Dall. 47. An indictment will lie for maliciously, wilfully, and wickedly killing a horse; Res publica v. Teischer, 1 Dall. 335. So it will lie for destroying a tree standing on public ground, if the tree was useful for public convenience or ornament; Commonwealth v. Eckert, 2 Browne, 251. Driving a carriage through a crowded or populous street at such a rate or in such a manner as to endanger the safety of the inhabitants, is an indictable offence at common law, and amounts to a breach of the peace; U. States v. Hart, Peter's Rep. 390. house to a woman of ill fame, knowing her to be such, with the intent that it shall be used for indictable offence at common law. tended for the defendant that the facts set forth did not constitute an offence indictable at common law. Parker, C. J. The principal objection however was, that the the purpos facts alleged do not constitute an indictable offence. It is found es of prosi tution, is an that the defendant let this house to a woman of ill fame, knowing her to be such, with the intent that it should be used for the purposes of prostitution, and that it was so used. There is no statute against such an offence, and the question then is, whether it is indictable at common law. It has been compared to cheating on false pretences, which was not indictable at common law, and which has been made so by a statute. But the cases are different, inasmuch as cheating acts only upon the individual defrauded; whereas this offence is of a public nature, and obviously injurious to the public morals. The real question is, whether exciting, encouraging, and aiding one to commit a misdemeanor is not of itself a misdemeanor. And we find that it has been held so to be in the case of The King v. Phillips, 6 East. 464, in which it was decide, that an endeavouring to provoke another to commit the misdemeanor of sending a challenge to fight, is itself a misdemeanor; it being the object of the law to prevent the commission of offences. On this ground we think the indictment is sustainable. Or the exhi bition of an ture. 4. COMMONWEALTH V. SHARPLESS, ET AL. Dec, T. 1815, 2 Sergt. & Rawle's Penn. Rep. 91. Per Cur. Tilghman, C. J. This is an indictment against obscene pic Jesse Sharpless and others, for exhibiting an indecent picture to divers persons for money. The defendants consented, that a verdict should go against them, and afterwards moved in arrest of judgment for several reasons: 1st. "That the matter laid in the indictment is not an indictable offence." There is no act. punishing the offence charged against the defendants, and therefore the case must be decided upon the principles of the common law. The learned judge after a review of the cases on this subject concludes thus. "My opinion is, that the indictmént is good, and therefore, the judgment should not be arrested." Yeates, J. The wicked intention of the defendants; the exhibition of the obscene painting for money, to persons unknown; and the effects of such scandalous conduct, are facts found by the jury, and I cannot bring my mind to doubt for a single moment, that the offence charged, falls within the cognizance of a court of criminal jurisdiction. Brackenridge, J. concurred. 5. COMMONWEALTH V. HOLMES, Oct. T. 1821, 17 Mass. Rep. 337. S. P. COMMONWEALTH V. SHARPLESS, 2 Sergt, & Rawle's And in an The defendant was convicted for publishing a lewd and obscene indictment book and picture. Motion in arrest of judgment because no for publish part of the book, which was alleged to be a libel, was set forth scene book in the indictment. ing an ob or print, it the book or scribe the print. Per Cur. Parker, C. J. It can never be required that an ob- sary tocopy scene book and picture should be displayed upon the records of minutely de the court; which must be done, if the description in these counts is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency, in order to punish it. 6. COMMONWEALTH V. COOLEY, Sept T. 1830, 10 Pickg. Mass. Rep. 37. The defendant was convicted on an indictment at common Disinter law for disinterring a dead body. ring a dead body is an indictable Motion in arrest of judgment, because the disinterring of a offence at dead body is not an offence at common law. Per Cur. We think it is clear that it is an offence at common law, and there is an express decision to that effect in 2 T. R. *733. The reason why cases of this sort are not to be found in the earlier reports is very obvious, namely, that the dissection of human bodies was not so extensively practised in former times. And this will account for the fact, that few, if any prosecutions at common law for this offence, have taken place in this commonwealth, common law, 7. THE STATE V. BATCHELDER AND OTHERS, Jan. T. 1832, 5 N. Hamp. Rep. 548. fence to windows of The indictment in this case alleged, that the defendants, on It is an in the 4th June, 1829, in the night time, with force and arms, two dictable of window sashes and fifteen squares of glass, of and belonging to break, with the dwelling house of A. B. with a large stick of wood and with clubs, the stones, injuriously, wilfully and maliciously did break and des- a dwelling troy, and did violently, injuriously, wilfully and maliciously cast night, and and throw stones at, into and against said dwelling house, and greatly damage the same, to the great disturbance and terror of and quiet of house in the thus disturb the peace the resi dents there of. An indict the said A. B. and other persons then and there in the said dwelling house. It was contended for the defendants that the facts alleged in this indictment did not amount to an indictable offence. Per Cur. We should have thought it strange, if upon examination of the law, it had been found that individuals might go in the night and break with clubs the windows of a dwellinghouse, and disturb the peace and quiet of private families, without committing any breach of the peace, which could subject them to punishment. We should have supposed, that if such outrages could be committed without subjecting the perpetrators to any other punishment than the damages which might be recovered in a civil action, there was a great defect in the law. But the law is not thus defective. It is clearly settled, that such an attack upon a dwelling house is an unlawful disturbance of the public peace; and as such punishable by indictment; 5 Bin. 277, Commonwealth v. Taylor, 1 Dall. 338; 1 Greenl. Rep. 22, Harding's case; 8 D. & E. 358; The King v. Wilson, et al. Crown Circuit Comp. 695; 5 Cowen 258, The People v. Smith. The breaking of windows in the night, while the family is in the house, is not a mere trespass upon property; but being calculated in is nature to frighten and disturb the people within the house, it may be considered as an indirect attack upon the perons of the family, and is clearly a breach of the peace. S 8. COMMONWEALTH V. HOXEY, Sept. T. 1820, 16 Mass. Rep. 385. The defendant was indicted and convicted for unlawfully, disment lies at orderly and openly disturbing a town-meeting, assembled for the law, for dis purpose of choosing town officers, for the next ensuing year. orderly be haviour in town meet common ings. Motion in arrest of judgment. Per Cur. Do the facts charged amount to an offence at the common law? On this question we entertain no doubts. Here was a violent and rude disturbance of the citizens, lawfully assembled in town meeting and in the actual exercise of their municipal rights and duties. The tendency of the defendants conduct was to a breach of the peace, and to the prevention of elections, necessary to the orderly government of the town, and due management of its concerns for the year. Motion overruled. 9. THE STATE V. HOLDING, Jan. T. 1821, 1 M'Cord's S. Ca. Rep. p. 31. The defendant was convicted on an indictment for attempting And for at to suborn a witness to commit perjury. Per Cur. Johnson, J. The motion in arrest of judgment, involves the question, whether the offence so found, constitutes an offence for which the defendant can be punished criminaliter. For the defendant it is contended that the indictment should have charged, specifically, the fact which the defendant attempted to procure the witness to swear to, as without it, it could not appear whether it was true or false, and the defendant might, therefore, be innocent. The principle I take to be is, that an attempt to prevent the due course of justice is an indictable offence, and punishable criminaliter. On this principle, perjury, subornation of perjury, bribery, extortion, rescue, escape, &c. are indictable offences; 1 Chitty's Crim. Law. 85. So in attempting to prejudice the mind of the jury, by distributing hand-bills before the trial; 4 T. R. 285. And in Tremain's case, P. C. 169, we find the precedent of an indictment for pursuading a witness not to give evidence. The fact to which the defendant wished the witness to swear, he was prevented from disclosing by the indignant repulse which the witness gave him, and did not, therefore, enter into the case; and if it had, it is only a circumstance going to show the quo animo, with which the bribe was offered, and any other circumstances producing the same conviction, as to the intention, is fully sufficient. The indictment in this case does charge the act to have been done with an intention to prevent the course of justice, and on the principle established, is an indictable offence. tempting to suborn a witness. 10. COMMONWEALTH V. WING, Oct. T. 1829, 9 Pick. Mass. Rep. 1; charges a The defendant was indicted for maliciously discharging a gun, If one dis whereby a woman named Gifford, was thrown into convulsions. gun, with It was averred, that the defendant well knew that she was sub- knowledge and warn ject to such convulsions upon the firing of a gun, and at the ing that the time when the offence was committed, he was warned and re- affect inju quested not to fire. These averments in the indictment were riously the substantially proved at the trial, and the defendant was convict- sick person ed. On a motion for a new trial it was contended for the de- in the neigh report will health of a borhood, |