Opinion
March 27, 1899.
PRESENT: Matteson, C.J., Stiness and Tillinghast, JJ.
(1) Criminal Law. Judicial Notice. In charging an offence in violation of a statute in an indictment, the use of the participial form of averment, "being then and there c:" is sufficient, without a direct and positive averment. An indictment charged that the defendant "on the day of , A.D., with force and arms, at Woonsocket, in the aforesaid county of Providence, being then and there an itinerant vendor, did then and there engage in a temporary and transient business." Upon demurrer alleging that the indictment did not aver that the defendant was doing a temporary and transient business in the State of Rhode Island: — Held, the language quoted was a sufficient charge that the defendant was doing a temporary and transient business in said State.
INDICTMENT charging the offence described in opinion Heard on demurrer to indictment. Demurrer overruled.
Willard B. Tanner, Attorney-General, for the State.
Wilson Jenckes, for defendant.
Our opinion is that the indictment sufficiently states an offence against Gen. Laws R.I. cap. 163, as amended by Pub. Laws R.I. cap. 326. The defendant's contention is that the words "being then and there an itinerant vendor" do not sufficiently charge that the defendant was an itinerant vendor, but that the averment should be in positive terms that the defendant was then and there an itinerant vendor. The participial form is, however, often employed, and that it is sufficient see 1 Bish. Crim. Prac. §§ 306-7.
The defendant also contends that the indictment is bad because it is not averred that the defendant was doing a temporary or transient business in this State. But the indictment charges that the defendant "on the eighth (8) day of December, A.D. 1897, with force and arms at Woonsocket, in the aforesaid county of Providence, . . . . . did then and there engage in a temporary and transient business, and did for the purpose of carrying on said business hire, lease and occupy a certain building and structure in said Woonsocket for the exhibition and sale of certain goods, wares and merchandise, and did then and there expose for sale and sell at public auction certain goods, wares and merchandise, to wit, a pair of opera glasses," c. We think this is a sufficient charge that the defendant was doing a temporary and transient business in this State.
Demurrer overruled, and case remitted to the Common Pleas Division for further proceedings.