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for perjury in a deposition before commissioners by commission out of the court of wards. But in the same book and page, § 161 for perjury in a deposition before commissioners, by commission out of chancery on the stat. of 5 Eliz. after the words in the indictment, "whereas in truth the said H. S. did not cause, &c. neither, &c. (negando effectum depositions, ) prout prædict. W. false and corrupte deposuit et juravit, per quod," &c. And again Ibid 138, § 241, an indictment for perjury committed in an answer, in the exchequer at Chester, states, that the defendant on his oath" said, affirmed and swore these English words following, &c. and so the said R. in making and confirming his answer in that part aforesaid, the day of

at, &c. voluntarily and corruptly committed voluntary perjury," &c. It is evident therefore, that the forms of indictment at common law for perjury, are not uniformly the same; but the words falsly, corruptly and willfully, as applied adjectively or adverbially to the act of swearing, are mere expletives to swell the sentence, in the language of Lord Hardwicke. 1 Atky. 50.

We find no adjudged case or dictum in the books, that such words are appropriate terms of art, descriptive of the crime of perjury, at common law, as murdravit in an indictment for murder cepit in larceny mayhemiavit in mayhem, feloinee in felony, &c. 2 Hawk. c. 25, § 55. On the coutrary, we do find it laid down by the judges, that an indictment for perjury at common law, does not require so much certainty as on the statute, and that it need not be in a court of record, or matter material to the issue. 5 Mod. 348. 1 Sid. 106. And in Cox's case, (Leach 69,) it was agreed by ten judges unanimously, that the word willfully, was not essentially necessary in an indictment for perjury at common law, though it was essential in an indictment for perjury under the stat. of 5 Eliz. c. 9, because the term willful in the statute, is a material description of the offence. Still it is necessary, that it should appear by the indictment, that the oath was willfully false.

It will readily be agreed, that all indictments must have a precise and sufficient certainty, and that the offences must be set forth with clearness and certainty. 4 Bl. Com. 305, 6. Every person should be apprised of the distinct charge made against him, in order that he may come fully prepared for his defence. But in the words of the human Lord Hale," the great strictnesses and unseemly niceties, required in some indictments, tend to the reproach of the law, to the shame of the government, to the encouragement of villainy, and to the dishonour of God." 2 H. H. P. C. 193.

4. The last reason offered in arrest of judgment, is, that the

indictinent is insensible and repugnant, and is defective both in form and substance. This objection being made in general terms, must nec essarily refer to the supposed defects, before particularly specified and already considered.

Upon the whole, on the best consideration, which my brother Yeates and I have been capable of giving to the different reasons filed in arrest of judgment, our official duty constrains us to say, that they are not relevant in point of law, and that the commonwealth is entitled to judg

ment.

Judgment, that the defendant pay a fine of one hundred dollars, and be imprisoned for the term of six calendar months, and until he shall have paid the said fine and the costs of prosecution.

AT A CIRCUIT COURT, AT BEDFORD, NOVEMBER 1802. CORAM, YEATES AND SMITH, JUSTICES.

RESPUBLICA against PETER ARNOLD.

Indictment for a nuisance in obstructing an ancient water course, whereby a public highway was over-flowed, and spoiled, need not state, how far in length or breath the water stood on the road.

Such indictment laying the nuisance to be in the commonwealth's highway, or road leading from, &c. is good.

An indictment was found against the defendant, for a nuisance, in May sessions 1801, as follows:

Bedford county, ss.

The grand inquest for the county of Bedford, upon their oaths and affirmations respectively, do present, that Peter Arnold, late of the county aforesaid, yeoman, the 22d day of April in the year of our Lord 1801, with force and arms, &c. at the townships of Coleraine and Providence, in the county aforesaid, and within the jurisdiction of this court, a certain ancient water-course, called the Raystown branch of Juniata, and a certain other ancient water-course called Dunning's creek, which said ancient water-course called the Raystown branch of Juniata, running from Londonderry township in the county aforesaid, and which said ancient water-course called Dunning's creek, running from St. Clair township in the county aforesaid, and uniting in aud running through Bedford township, in the county aforesaid, and ruaning between the said townships of Londonderry and St. Clair, and VOL. III.

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the township of Hopewell, in the said county, across and through which the commonwealth's highway, or a road leading from the town of Bedford, in the county aforesaid, towards and unto the crossings of Juniata, in the county aforesaid, was laid out in due form of law, did obstruct and stop up, and the said water-courses so as aforesaid obstructed and stopped up, from the said 22d day of April in the year aforesaid, until the day of the taking of this inquisition, at the township of Bedford, in the county aforesaid, unlawfully and injuriously hath continued and still doth continue, by reason whereof the rain and waters that were wont and ought to flow and pass through the said water-courses on the same day and year, and divers other days and times afterwards, between that day and the day of the taking of this inquisition, did overflow and remain in the commonwealth's highway or road aforesaid, in the township of Bedford aforesaid, and thereby the same highway or road was and yet is greatly hurt and spoiled, so that the liege subjects of the commonwealth, through the same highway or road, with their horses, coaches, carts and carriages, then and at other days and times, could not nor yet can go, return, pass, ride and labor, as they ought and were wont to do, to the great damage and common nuisance of all the liege subjects of the commonwealth, through the same highway or road, going, returning, passing, riding and laboring, and against the peace and dignity of the commonwealth of Pennsylvania.

Another indictment was found against the defendant in August sessions 1801, for a nuisance, in obstructing the waters of the Raystown branch of Juniata, and thereby over-flowing the highway, which pursued the preceding form, mutatis mutandis. Both indictments were removed into the Circuit Court, and came on to trial at the last Circuit Court for Bedford county on the 24th November 1801, before Yeates an Smith, Justices, when the defendant was convicted on both indietments.

The following reasons were then filed in arrest of judgment.

1. For that the indictment does not state with certainty where the nuisance was, nor how far in length or breadth it did stand on the road.

2. For that the place in which the nuisance was stated to be committed, is in one of the commonwealth's highways or a road leading from the town of Bedford towards and unto the crossings of Juniata; and being in the disjunctive, cannot be supported; more especially, as it is uncertain, whether the said road is a public highway, or a private road.

Messrs. Duncan and Clark argued for the defendant. Neg

ligence in drawing indictments ought not to be countenanced. 3 Term Rep. 473-4. Every person accused should know the specific crime with which he is charged, in order to prepare for his defence. The offence must be laid with accuracy and precision, and certainty at least to a common intent is indispensably requisite. But here the charge is indefinite.

It is necessary to show how far a nuisance extends in length and beadth. 1 Hawk. c. 76 § 88. Indictment for stopping a certain part of a road at K. is bad, nor is it good to show that the nuisance was so long or so broad by estimation. Cro. Jac. 324. It must appear to be a nuisance and in the highway. 1 Hawk. c. 76, § 89, 91.

The essence of the crime here charged, is the spoiling of a public road, by obstructing the waters of ancient water courses. But it is laid that the injury was thereby done to a highway or road leading from, &c. Our laws recognize private roads as well as public highways, and the word road, does not necessarily convey the idea of a public highway. If a supervisor had been indicted for a breach of duty in such a road as is described in both indictments, it could not be supported. The law is generally laid down, that an indictment in the disjunctive is bad; as, murdered, or caused to be murdered; forged, or caused to be forged, &c. 2 Haw. c. 25, § 58. The instances put are mere illustrations of the rule. It will not be pretended, that an indictment charging A, that he had murdered B or C; or, that he had forged a bond or note, could be maintained, though the disjunctive does not relate to the act itself, but to the description of the person or thing concerning which the crime was committed. If a law should prohibit certain acts under a penalty, stating in an indictment, that the party did this thing or that thing so probibited, would be bad. Thus, where under the intrusion act of 11th April 1795, (3 St. Laws 793) certain persons were indicted for taking possession of, entering, intruding or settling on lands within the limits of Luzerne county, such indictments have generally been considered by counsel as defective. Here the road said to be spoiled, not being laid as a common highway and public road, both indictments must be deemed substantially defective.

Messrs. Hamilton, Riddle and Dunlap, insisted for the commonwealth, that the first exception was extremely futile; it is impossible to describe with certainty the length or breath of a nuisance in a road overflowed with water, from its constant changes either by the increase

or decrease of the stream obstructed. The present indictments are fully warranted by the precedent in Stubb's Cro. Circ. Com. 495.

Nor will the second exception serve the defendant. The rule that an indictment shall not be laid in the disjunctive is inapplicable to the present case. The objection has only prevailed where it went to the act itself, and which was uncertainly laid; such are the instances collected by Serjeant Hawkins, and the cases under the intrusion act cited by the defendant's counsel. Every fact must be charged directly and with precison against a defendent, that he may prepare his defence accordingly. If several independent acts are charged against him, they must be laid in the conjunctive, and he must then come prepared against all the charges. Here the words commonwealth's highway, control the whole sentence, and will equally refer to the word road. On a minute examination of all the laws respecting the highways in this state, it will be found that the legislature use the terms highways and roads in one common sense; and that unless the word private, or a similar adjective, precedes the expression road, it is uniformly used as a public highway.

Curia advisare vult.

And now, November 18th, 1802, Yeates J. delivered the opinion of the court as follows;

The first reason in arrest of judgment is, that the indictments do not state with certainty where the nuisance was, nor how far in length or breadth the water stood in the road.

On this head it was urged, that every indictment ought certainly to show to what part of the highway the nuisance extended, as by showing how many feet in length, and how many feet in breadth it contained. 1 Hawk. c. 76, § 88. Cites 2 Rol. Abr. 181. Cro. Jac. 324. Latch 183. But in Rex v. Smith, Trin. 27 Geo. 2. Sayer 98, it was determined that it is not necessary to set out the length and breadth of a nuisance in an indictment. The ground of the objection rested on this, that though neither the length nor breadth of the nuisance is traversable, both ought to be set out in an indictment for a nuisance, in order to guide the discretion of the court in setting a fine; but, the court said, it is not necessary on that account, regard being had by the court in setting a fine to the length and breadth of the nuisance proved, and not to that set out. The same point was determined in Rex v. Brookes, ib. 168, and again in Rex v. the inhabitants of East Lidford. Besides, I cannot see how this precision can be expected, as to the description of water overflowing a road. It is not analogous to the case of a fence thrown across a road,

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