Commonwealth v. Prescott

• Decision Date: 25 February 1890
• Citation: 23 N.E. 729,151 Mass. 60
• Parties: COMMONWEALTH v. PRESCOTT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 60

23 N.E. 729

COMMONWEALTH

v.PRESCOTT et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 25, 1890.

Exceptions from supreme judicial court, Norfolk county.

Andrew J. Waterman, Atty. Gen., and H.A. Wyman, Second Asst. Atty. Gen., for the Commonwealth.

J.L. Eldridge, for defendants.

DEVENS, J.

The defendants filed in the district court a motion to quash the complaint,upon the ground that it did not set forth any offense, that it did not sufficiently describe the act of the defendants, and that it was uncertain and insufficient as to the acts and means by which the offense was committed. This motion was renewed by them in the superior court. The complaint was for a violation of chapter 91, § 58, Pub.St., and follows substantially the words of the statute. Where an offense is created by statute, it is, as a general rule, sufficient to charge the offense in the words of the statute, and in the case at bar these words are carefully followed in the complaint. Com. v. Barrett, 108 Mass. 302;Com. v. Ashton, 125 Mass. 384. There is an exception where these words may by their generality embrace cases falling within its literal terms, which are not within its meaning or spirit, and where such facts must be alleged as will bring the charge within the meaning and intent of the legislature.Com. v. Barrett, ubi supra, and cases cited. This exception can have no application to the complaint in the case at bar. The prohibition against taking a smelt in any other manner than by artificially or naturally baited hook or hand-line is absolute. The complaint not only charges the act of taking them otherwise to have been done unlawfully by the defendants, but sets forth the means by which they did it, viz., “by means of a seine and net,” which is certainly another manner than that permitted by the statute.

The defendants further contend that the district court had no jurisdiction of the offense, and that they could only have been proceeded against by indictment. The Public Statutes (chapter 217, § 2) provide that all fines and forfeitures recovered in criminal prosecutions or exacted as a punishment for any offense, etc., “may, unless otherwise espcially provided by law, be prosecuted for and recovered by indictment in the superior court, or, when the amount and value thereof does not exceed $100, before a police, district, or municipal court,” etc. The defendants, therefore, urge that, as the Public Statutes make no other especial provision...