Com. v. Freelove

• Decision Date: 11 November 1889
• Citation: Com. v. Freelove, 150 Mass. 66, 22 N.E. 435 (Mass. 1889)
• Parties: COMMONWEALTH v. FREELOVE.
• Court: Supreme Judicial Court of Massachusetts

150 Mass. 66

22 N.E. 435

COMMONWEALTH v. FREELOVE.

Supreme Judicial Court of Massachusetts, Bristol.

November 11, 1889

COUNSEL

E.L. Barney, for defendant.

A.J. Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

OPINION

HOLMES, J.

This is an action to quash an indictment for adultery, on the grounds that it does not conclude against the peace of the commonwealth, nor against the statute in such cases made and provided.Pub.St. c. 213, § 16, expressly enacts that no indictment shall be quashed on these grounds, if the omission does not tend to prejudice the defendant; but it is suggested that the statute is unconstitutional.We shall not consider how far the legislature might go in simplifying indictments before encountering article 12 of the Massachusetts bill of rights.We admit that there are limits to its power in this direction; that, for instance, it could not authorize the omission of allegations necessary to describe a specific crime.Com. v. Harrington,130 Mass. 35;State v. Learned,47 Me. 426, 433;McLaughlin v. State,45 Ind. 338;Hewitt v. State,25 Tex. 722.But there is no doubt that it can do a good deal in the way of simplification.Com. v. Bennett,118 Mass. 443;State v. Corson,59 Me. 137;State v. Comstock,27 Vt. 553;Brown v. People,29 Mich. 232, 237.We do not think that it needs argument to show that the legislature may dispense with a purely formal averment, which would give the defendant no additional information, and the omission of which would not prejudice him.Com. v. Holley, 3 Gray, 458."Technical and formal objections of this nature are not constitutional rights."Com. v. Hall,97 Mass. 570, 574.

The defendant was safe in assuming that the proceeding was under the statute, although he was not informed so in terms.Galizard v. Rigault, 2 Salk. 552, 2 Ld.Raym. 809;6 Dane, Abr. 676;Com. v. Call,21 Pick. 509, 511;Com. v. Elwell, 2 Metc. 190, 191;Andersonv. Com., 5 Rand.(Va.) 627, 632;State v. Cooper,16 Vt. 551;State v. Brunson, 2 Bailey, 149.Exceptions overruled.