
    Updegraff against The Commonwealth.
    In Error.
    
      Monday, May 15.
    IN the Court of Quarter Sessions.of Dauphin county, to which this was a writ of error, the following indictment was r j lOUna.
    indict-^ particular statute, must be conformable to that statute.
    An indictment founded upon the act ingthe defend-erection of digeneral; each dSoTof-* *be ner of each ^‡'.6 scems’thatthe g°™’ fmí má°tfig composed
    
      October Session, 1819.
    
      Dauphin county, ss.
    The grand inquest of the Commonwealth of Pennsylvania, inquiring: in and for the county of Dauphin, on their solemn oaths and affirmations respectively do present, that the river Susquehanna is, and hath been, a common stream and public highway from and before the first day of August, eighteen hundred and nineteen, and until the taking of this inquisition, passing and flowing in and through the township of Susque•hanna in said county: and that Jacob Updegraff late of said county, yeoman, Isaac Updegraff late of said county, man, and Ellis Updegraff late of the said county, yeoman,on the first day of October, in the year of our Lord, eighteen hundred and nineteen, at the township aforesaid, in the said eounty, and within the jurisdiction of this Court, with force and arms, did erect, repair, maintain, and set up, and cause to be erected, repaired, maintained, and set up, divers dams, baskets, pounds, and other devices for taking fish, in and across the stream, bed, and channel of the said river Susquehanna, to the injury and destruction of the brood and spawn of the fish of the said river, to the great obstruction and impediment of the barges, boats, rafts, skiffs, and other craft, in passing up and down said river, to the common nuisance of the good people of this Commonwealth, to the evil example of all others in like cases offending, contrary to the acts of general assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. And the grand inquest further present, that the said Jacob Updegraff, Isaac Updegraff, and Ellis Updegraff, on the day and year aforesaid, at the township aforesaid, in said county, and within the jurisdiction of this Court, with force and arms, did aid and assist in erecting, repairing, and setting up, the said divers fish-dams, baskets, pounds, and other devices for taking fish in the said river Susquehanna, the same river, then and there still being and remaining a common stream and public highway, to the evil example of all others in like cases offending, contrary to the acts of general assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.
    
    On this indictment yacob Updegraff was found guilty, and the other defendants were acquitted. A motion was made in arrest of judgment, which after argument, was overruled, and the defendant sentenced to pay a fine of thirty dollars; one half to the use of the informer, and the other half to¡.the use of the supervisors of the public roads and highways within the township of Susquehanna in the said county.
    By the act of assembly of the 9th March, 1771,
      
       the river Susquehanna, and certain other streams, are declared public highways, and a penalty of five pounds is inflicted on any person who shall erect, build, set up, repair, or maintain, or be aiding, assisting, or abetting, in erecting, building, setting up, repairing, or maintaining any wear, rack, basket, dam, pound, or other device, or obstruction whatsoever, within the said rivers or streams, or that shall fix or fasten any net or nets across the same or any part thereof, whereby the fish may be obstructed in going up the said rivers, or that shall take, destroy, or spoil any spawn, fry, or ■brood of fish, or any kind of fish whatsoever, in any such wear rack, dam, basket, pound, or other device.
    By a supplement to this act passed March 31st, 1785, ■the penalty is increased to ten pounds.
    Then follows the act of the 8th April, 1799, under which the defendant was sentenced, which declares, that if any person shall erect, repair, maintain, or set up, or shall be aiding or assisting in erecting, repairing,. maintaining, or setting up any fish-dam, basket, or pound, for taking fish in the rivers Schuylkill, Susquehanna, and Juniata, or their branches, which have been or hereafter may be declared public highways, he shall forfeit the sum of thirty dollars; one half to the use of the informer or prosecutor, and the other half to be applied as thereinafter shall be directed.
    On the removal of the cause to this Court, it was contended by Norris and Ellmaker, for the plaintiff in error, that the offence was set out with so little certainty and precision, that the judgment must be reversed. Against such an indictment, the defendant could not come prepared to defend himself. The act of 8th April, 1799, on which the prosecution is founded, declares that the erection of any fish dam, basket, &c., shall subject the offender to punishment. Every erection therefore, is a nuisance, for which he is punishable; consequently the number of them should have been stated, and their nature and circumstances should have been specially described, to enable the Court to judge whether they came within the law. The indictment however, instead of using such precision, charges the defendants in general terms with the erection of divers fish dams, &c., leaving the number altogether uncertain, and without stating a single circumstance in relation to their nature, extent, or dimensions. It is not in all cases sufficient to adopt the very words of a statute, because the offence sometimes requires a more particular description than is furnished by the statute, to present it individually, to the Court and jury. . But in the present instance, even the words of the act on which the prosecution was founded, are not pursued. The language of that act is blended with that of the act of 1771, which is more comprehensive than the other, and renders penal the destruction of fish in the modes therein pointed out, or by any other devices. These words are not. to be found in the act of 1799, and consequently if the present judgment be sustained, the defendant may possibly be punished for an of-fence not punishable by the act on which he was indicted, since it is clear, that it is no offence .under that act to take or destroy fish by any other means than those which are enumerated. They cited, 1 Chitty, 227. Davy v. Baker.
      
       
      
      King v. Robe.
      
       King v. Gibbs, 
      
       Co ¡borne v. Stockdale.
      Regina v. Burnaby, 
      
       King v. Wheatly.
      
       King v. Munoz. v. Mason.
      
       Boscaw. on Fen. Stat. 25* 32• 1 Hawk. b. i. 'c. 76. sect. 88.- p. 42. I Chitty, 173. 2 Hawk. b. ii. c. 2. sect. 74. 3 Chit. 253. The Commonwealth v. Hoover.
      
       Steward v. The Commonwealth.
      
    
    
      Douglass and Fisher, in support of the indictment, answered, that unless the number of the nuisances increased the punishment, which was not the case in the present instance, it was unnecessary to state it. All the nuisances may be indicted aggregately as one offence. Many precedents might be adduced of indictments much more loose and general than this. The established form of indictment for keeping a tippling house, uses language equally general and even more so. In Respublica v. Arnold,
      
       it was not considered necessary, in an indictment for obstructing an ancient water course, to state how far, in length and breadth, the water stood on the road which was overflowed in consequence of the obstruction. In The King v. Witmire,
      
       an exception to an indictment of trespass for taking “ quosdam pisces” was overruled. And in The Commonwealth v. Sharpless,
      
       an indictment for exhibiting an indecent picture, without minutely describing it, was held to be sufficient. The indictment in the present case is sufficiently certain for every necessary purpose. The offence is not of such a nature as to require more precision. There is no property to be returned,, which is the reason why, in an indictment for larceny, great precision in the description of the object of the offence is called for. The objection that the indictment uses the words of more than one act of assembly, is susceptible of an easy answer. The river Susquehanna is, upon principles of the common law, a public highway. Carson v. Blazer.
      
       The obstruction of its waters was therefore an offence at •common law; and for such an offence the indictment was sufficient, the punishment inflicted by the act of assembly being merely cumulative. The act imposes a penalty upon what was an offence before, and therefore it was not even necessary that the indictment should conclude against the form of the statute. If it be objected that the words “ other devices,” are not to be found in the act under which the judgment was given, these words may be regarded as surplusage, and will not vitiate the indictment if there be enough without them. Besides, the act of 1799, does not repeal that of 1771; they are in pari materia, and as the indictment concludes against the acts of assembly, if it can be brought within either of them, it will be good. They also cited in the course of the argument,Co. Litt. 303. S Co. 121. White v. The Commonwealth,
      
       and Werfel v. The Commonwealth.
      
    
    
      
      
         1 Sm. L. 324.
    
    
      
      
         2 Sm. L. 313.
    
    
      
      
         4 Burr. 2471.
    
    
      
       2 Str. 999,
    
    
      
       1 Str. 497.
    
    
      
       1 Str. 494.
    
    
      
      
         2 Ld. Raym. 900.
    
    
      
       2 Burr. 1127.
    
    
      
       2 Str. 1127.
    
    
      
      
         2 Leach. P. C. 451.
    
    
      
      
         1 Browne’s Rep. Appd. 25.
    
    
      
      
         4 Serg. & Rawle, 194.
    
    
      
      
         3 Yeates, 420.
    
    
      
      
         2 Keble, 178
    
    
      
       2 Serg. & Rawle, 91.
    
    
      
       2 Binn. 477.
    
    
      
       1 Serg. & Rawle, 139.
    
    
      
       5 Binn. 65.
      
    
   The opinion of the Court was delivered by

Gibson J.

It is necessary to express an opinion on but one of the errors assigned, as it is clear the offence charged is not laid with sufficient certainty.' The indictment is not for a nuisance at common law, but is grounded on an act of assembly. On this subject, there are two acts, distinct in their provisions, and not, as contended, in pari materia. That of the 9th March, 1771, imposes a penalty of five pounds, (which by the supplement of the 31st March, 1785, is increased to ten pounds,) on any person “ who shall erect, build, set up, repair, or maintain, or shall be aiding, assisting, or abetting in erecting, building, setting up, repairing, or maintaining any weir, rack, basket, dam, pound, or other device or obstruction whatsoever, within the said rivers or streams, or shall fix or fasten any net across the same, whereby the fish may be obstructed in going up the said rivers, or that shall take, destroy, or spoil any spawn, fry, or brood, in any such weir, rack, &c.” The act of the 8th April, 1799, imposes a penalty of thirty dollars, which is to be equally divided between the informer and the supervisors of the highways of the proper township, on any person who shall “ erect, repair, maintain, or set up, or shall be aiding, or assisting in erecting, repairing, maintaining, or setting up any fish dam, basket, or pound, for taking fish in the said rivers, or their branches, which have been or hereafter may be declared public highways.” The indictment charges, that the plaintiff' in error and the others who were defendants below, “ did erect, repair, maintain, and set up, and cause to be erected, repaired, maintained, and set up, divers fish dams, baskets, pounds,and other devicesfor taking fish,in and across the stream, &c., to the injury and destruction of the brood and spawn of the fish of the said-river, to the great destruction of the barges, boats, &c.” It is obvious the prosecutor has attempted to ground his indictment on both acts, which, where the acts are separate and distinct in their provisions, can no more be done, than a statutory offence can be blended with one at common law. The offence must be brought within the words of a single statute, or, at most, within the words of two or more statutes, only when they are in pari materia, in which case they may be taken as but one. Here the penalty of the act of 1799, has been inflicted, and it is therefore immaterial whether the indictment be good on any other act, or at common law; for unless it be so on the act of 1799, there will be error in the sentence, and the judgment have to be reversed. There can be no objection, on the ground that the offence is not strictly brought within the words of the act; for the words are pursued to their full extent, and the circumstances of description which are super-added, are to be taken as surplusage, which does not vitiate the whole indictment, but renders it void only as to the excess. But even where the very words are pursued, an indictment may be still insufficient; for the same precision of description as to the individuality of the offence charged, is as requisite in an indictment on a statute as if it were at common law. For the purpose of classification, and to bring the particular instance precisely within the abstract meaning of the statute, its own language without any thing more, may always be safely employed; but to distinguish one instance from another, all necessary incidents of time, place, and circumstance must, as in other cases, be added. Here the error is, that the defendant is not charged with one specific act or of-fence, but with “ divers” acts, each constituting a distinct offence, which is too general. The special manner of the fact should appeal-, that the defendant may precisely know with what he is charged, and that he may be able to plead the very fact of which he is to be acquitted or convicted, to a second indictment for the same offence. Here the word “divers,” ascertains nothing. It is-unnecessary to consider the old cases on the subject; for at the present day there are, I believe, in England, but three exceptions to the rule that a particular specified offence must be charged, and these are, the cases of a common barrator, scold, and keeper of a bawdy house; to which may, in this State, be added that of the keeper of a tippling house. In the two first, the crime is not constituted by any definite number of successive instances, but by the daily habit of the individual; and therefore to set out those special instances that are to be relied on as evidence, would not set out the offence itself, which, from its abstract nature, is incapable of being defined with any degree of precision: and in the other two, the keeping of the house seems, in contemplation of law, to be the gist of the offence; and that, being an act of a continuous nature, which cannot be limited to a single time or circumstance, must, therefore, necessarily be stated generally; and the particular instances of unlawful conduct being necessary only to shew the unlawful purpose for which such house is kept, need also be averred only generally. But whatever may be the speculative reasons for such exceptions, it is clear the particular instances of which each of those charges is made up, could not be set forth without such extreme inconvenience as to render successful prosecution almost impracticable. Here, however, no such inconvenience exists; for the particular erection, might, and ought, to have been described with reasonable certainty. I do not say its form, dimensions, and the materials of which it was constructed, should have been stated: perhaps the indictment, having pursued the words of the act, which is silent as to those particulars, would, in that respect, be unexceptionable. But the objection, that the defendant is charged with an indefinite number of acts, each of which constitutes a specific offence, is fatal; and the judgment must be reversed.

J udgment reversed. 
      
      ) 3 Sm. L. 376.
     