
    Commonwealth versus Thomas F. Hoxey.
    The penalty imposed by the statute of 1785, c. 75, § 6, for disorderly behavior in town meetings, does not attach, unless the offender persists in such beha vior after notice from the moderator, and does not withdraw from the meeting after being directed so to do by the moderator.
    An indictment lies at the common law for disorderly behavior in town meetings.
    An indictment, concluding contra formarn statuti, may be maintained, if the facts charged amount to an offence at common law, and are not within the purview of any statute.
    The indictment set forth that the inhabitants of Williamstown, on the 15th of March, 1819, were duly assembled in town meeting, for the choice of town officers for the political year then next ensuing ; that a moderator was duly chosen, who called on the electors present to give in their votes for a selectman for the year ensuing; that the defendant, while the moderator was presiding in the meeting, and was receiving the votes for a selectman, with force and arms, intending as much as in him lay to prevent the choice of said selectman according to the will of the electors, and to interrupt the freedom of election, unlawfully and disorderly did openly declare that the old selectmen should not be chosen, and attempted repeatedly * to take from the box, which contained the bal- [ * 386 ] lots of the electors, the votes of the electors ; and so the jurors say, “ that the said T. F. Hoxey, on, &c., at, &c., in the public town meeting aforesaid, in manner and form aforesaid, did behave himself disorderly and indecently, to the disturbance of the peaceable and quiet citizens then and there assembled for the purpose aforesaid, in violation of the rights of private suffrage, against the peace of the commonwealth aforesaid, and contrary to the form of the statute in such case made and provided.”
    The defendant pleaded guilty to the indictment, and moved in arrest of judgment, “ because the said indictment purports to be founded upon a statute law of the commonwealth ; whereas there is no such statute in the state, making the facts set forth in the indictment an offence against the commonwealth; and because the facts set forth in the indictment do not amount to an offence at common law.” Noble and Dewey argued in support of the motion. The statute of 1785, c. 75, <§> 6, has provided a particular penalty for disorderly behavior at town meetings; and has also prescribed the mode by which such penalty is to be enforced, directing that all suits for the recovery thereof shall be prosecuted before a justice of the peace. Now, where an act is prohibited by statute, as here, and the penalty for offending against it, and the mode of enforcing the penalty, are prescribed by the statute, that mode alone must be pursued. The statute of 1795, c. 55, <§> 4, inflicts a penalty on any person, who shall behave disorderly at the meeting only, to which the statute relates ; which is the meeting for the choice of representatives. .It cannot therefore apply to this case. And these two statutes are the only ones which have any relation to the case.
    If, then, there is in fact no statute provision, there can be no conviction ; unless, upon an indictment concluding contra formam statuti, there may be a conviction of an offence existing by the common law only. It is acknowledged *that this point [* 387 J has been differently decided at different periods . The converse of the proposition has been settled in this Court 
      And it will appear from the cases cited, and others which might be referred to, that this Court has always insisted on technical strictness, in all indictments.
    But if this objection is overruled, we maintain that no offence, at the common law, is described in this indictment; for that knows nothing of town meetings.
    
      Davis, Solicitor-General, for the commonwealth.
    There is no specific provision for the offence described in this indictment; but the facts set forth are indictable at common law, if any facts not precisely detailed in books can support an indictment. The conduct of the defendant was such as would corrupt the very sources of out-institutions of government. All our elections of public officers are held by the selectmen of the towns ; and if the choice of them is prevented or corrupted, the evil may be felt in every department of government.
    No principle is better settled, than that where an indictment alleges an offence indictable at common law, and concludes contra formam statuti, and it turns out that there is no statute making the act an offence, the indictment is good as at common law, those words being rejected as surplusage. The indictment in this case concludes also contra pacem, which is the form of one at common law.
    
      
      
        Hawk. P. C. Book 2, c. 25, § 115.
    
    
      
       2 Mass. Rep. 116, Commonwealth vs. Northampton. —7 Mass. Rep. 9, Commonwealth vs. Springfield. —11 Mass. Rep. 279, Commonwealth vs. Stockbridge.
      
    
   By the Court. The indictment charges the offence to have been' committed contra formam statuti; but no statute is found to describe the offence as alleged. The statute of 1785, c. 75, <§. 6, imposes a penalty of twenty shillings for disorderly conduct in town meetings, if the offender shall, after notice from the moderator, persist in his disorderly behavior, and shall refuse or neglect to withdraw from the meeting, after being directed to do so by the moderator. The offence laid in the indictment is not within this provision. Further, all penalties imposed by that statute, not exceeding forty [ * 388 ] shillings, are to be enforced by suit * before a justice of . the peace, and a very summary process is prescribed for the purpose in the statute.

Can the indictment, then, be maintained, concluding, as it does, against the form of a statute, if the facts charged amount to an offence at common law, and are not within the purview of any statute ? The negative of this question was formerly held by the English courts ; but later decisions have been the other way, and, as we think, on good and satisfactory reasons .

The remaining question is, Do the facts charged amount to an offgnce at the common law ? On this question we entertain no doubts. Here was a violent and rude disturbance of the citizens, lawfully assembled in town meeting, and in the actual exercise of their municipal rights and duties. The tendency of the defendant’s conduct was to a breach of the peace, and to the prevention of elections, necessary to the orderly government of the town, and due management of its concerns for the year. It is true that the common law knows nothing perfectly .agreeing with, our municipal assemblies. But other meetings are well known and often held in England, the disturbance of which is punishable at common law, as a misdemeanor. In this commonwealth, town meetings are recog nized in our constitution and laws ; and the elections made and the business transacted by the citizens, at those meetings, lie at the foundation of our whole civil polity. If then there were no statute, prohibiting disorderly conduct at such meetings, an indictment for such conduct might be supported.

Motion overruled. 
      
       [See the cases collected, 1 Saund. 135. n. 3—1 Starkie, Crim. Plead. 228-232. —Ed.]
     