State v. City of Auburn

Peters, C. J. The city of Auburn, having been indicted for its failure to open a highway laid out within its limits by county [278] commissioners, claims, upon demurrer thereto, that the indictment found against them is insufficient in some respects. It is contended that it is bad because the city of Auburn, so named in the indictment, is not described as a corporation of any kind, and more especially because there is no averment that the city of Auburn is situated within any county of this State. Such omissions are undoubtedly formal defects, indicating a want of care in the work of the pleader that is not to be commended. The omissions are supplied, however, to some extent by certain indirect allegations contained in the indictment. The way is alleged to have been laid out by the commissioners of Androscoggin county within the city of Auburn. And the indictment avei’S that it was found at a term of court begun and holden at Auburn within and for the county of Androscoggin. Aided by these implications, we deem it warrantable for us to determine as a matter of judicial knowledge that the city of Auburn described in the indictment is the municipal corporation of that name situated in our county of Androscoggin. The case of Com. v. Desmond, 103 Mass. 445, supports this view. The indictment further alleges that the mandate of the commissioners required that the way should be opened and built by the city within three years from March 31, 1890, and that for the period of time between March 31,1890, and March 31, 1893, as well as ever since, the city had wholly neglected to open and build the same ; and it is contended by the defense that such an averment as to the time of the commission of the alleged offense is bad for its generality. In support of this objection the defense invokes the general principle of pleading, recognized in our own cases, that some particular day must be named in the indictment on which the alleged offense was committed and that too even if the offense be set out with a continuando. In our view this criticism does not fairly apply to an indictment like the present. The principle' referred to applies mostly to offenses of commission, and not to those of omission; to acts done rather than acts omitted to be done; to offenses accomplished by active and not passive means. Of course the principle contended for would apply as strongly to an act of [279] non-feasance as to an act of mis-feasance when such act can be logically and correctly described as having been done on some particular day or upon some continuous days. In the present case it would not be true to charge the offense as committed on either the first or the last day of the three years allowed the city within which to construct the contemplated road, or on any intermediate day or days ; or as committed upon any time short of the whole period of three years. The offense was growing for three years, culminating at the expiration of that period. The ruling of the court on an analogous question in Smiley v. Merrill Plantation, 84 Maine, 322, sustains, as far as it goes, our conclusion here. Exceptions overruled.