People v. Girardin

[91] By iho :ourt, Whipple, J. It is a general rule, founded in justice and gc:d srrre, that every indictment should contain a certain description cf the o/hnee, of which the defendant is accused. It is also said that the indiebrent should contain a statement of the facts -by which it is ccnc-tiíiri'jJj so as to identify the accusation. 1 Chit. Or. L. 169. This is generally deemed proper for various reasons, the principal one of which is, that the defendant may be protected from being questioned a second time on the same ground. But the principal facts and circumstances which constitute an offence, need not in all cases be set out in the indictment. Exceptions to the general rule may be instanced in cases of indictments for being a common scold, or barretor; for keeping a disorderly or a common gambling house. So an indictment against a person for endeavoring to incite a soldier to acts of mutiny (1 Bos. and Pul. 179), or a servant to rob his master, has been held good, without stating the particular means adopted. An exception to the rule is also found in indictments for aiding prisoners to escape: it is sufficient to say “aiding and assisting.” And in charging an accessory before the fact, the words “that he did incite, move, procure, aid and abet,” have been held sufficiently descriptive of the offence, without stating in what manner and by what means the person charged did incite, &c. But there is another rule as ancient as that contended for by the counsel for the prisoner, which forbids the introduction in an indictment of obscene pictures and books. Courts will never allow its records to be polluted by bawdy and obscene matters. To do this, would be to require a court of justice to perpetuate and give notoriety to an indecent publication, before its author could be visited for the great wrong he may have done to the public or to individuals. And there is no hardship in this rule. To convict the defendant, he must have been shown to have published the libel: if he is the publisher, he must be presumed to have been advised of the contents of the libel, and fully prepared to justify it. The indictment in this cause corresponds with the precedents to be found in books of the highest merit. If authority was necessary, the case of the Commonwealth v. Holmes, 11 Mass. 336, fully sustains the views we have expressed. Certified accordingly.