Commonwealth v. Odenweller
| Decision Date | 06 May 1892 |
| Parties | COMMONWEALTH v. ODENWELLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from superior court, Suffolk county.
John Odenweller was convicted of unlawfully keeping a dog which disturbed the quiet of one John J. Trainer, and excepts. Exceptions overruled.
Geo. C. Travis, for the Commonwealth.
Henry F. Naphen, for defendant.
The only question argued upon the defendant's brief is whether the indictment was sufficient in form to allow proof of the ordinance which the defendant had violated. The verdict was rendered on the third count, which alleged that the defendant, at Boston, on a day named, “unlawfully did keep a certain dog, which, by barking, biting, and howling, did then and there disturb the quiet of a certain person, to wit, one John J. Trainer, against the peace of said commonwealth, the form of the statute of said commonwealth, and the revised ordinance of said city in such case made and provided.” It appears that the city, under authority of Pub.St. c. 102, § 109, had adopted an ordinance providing that “no person shall own or keep in the city any dog which, by barking, biting, howling, or in any other manner, disturbs the quiet of any person;” and that this ordinance had been printed as section 81 of chapter 49, in a bound volume known as the “Revised Ordinances of 1890,” and declared by an ordinance to be so known. It also appeared that, by section 99 of the same chapter, a fine of $20 was provided for a violation of section 81. As the statute (Pub.St. c. 102, § 109) authorized penalties not exceeding $10 only, section 99 of chapter 49 was so amended as to make the penalty for violation of the provisions of section 81 conform to the statute, and this amendment was adopted after the publication of the “Revised Ordinances of 1890.” The defendant contends that the words “revised ordinance” in the indictment are a proper name, indicating the book before mentioned, and that, as no valid ordinance forbidding the acts charged was contained in that book, none could be proved by the government. The contention rests upon a misconception of the meaning of words in common use and of plain signification. The allegation is the common one that the acts charged are contrary to the form of the ordinance or the by-law in such case made and provided, and allows proof, in any competent way, of the ordinance or by-law relied upon. The contention that the book should have been...
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