
    * Commonwealth versus Seth Caldwell.
    I.i an indictment for refusing to answer a tithingman on the Lord’s day, it is not necessary to allege that the tithingman was sworn into his office; nor that he had any wand or badge of office; nor that he was known to the defendant to be a tithingman.
    The defendant was indicted, under the statute of 1791, c. 58, $ 10, in the Circuit Court of Common Pleas, December term, 1815, for refusing to give answer to one Joseph Stone, a tithingman of Shrewsbury, on the 30th day of April, 1815, the same being Lord’s day. Being convicted on trial in the Common Pleas, he appealed to this Court; and at April term, 1816, retracting his former plea, he entered a nolo contendere, and then moved in arrest of judgment, stating the following causes:—
    1. That it is nowhere alleged, in the indictment, that the said Joseph Stone had, at any time before the said 30th day of April, taken the oath prescribed and required by law to be taken by persons who are chosen tithingmen within the commonwealth.
    2. That it is nowhere alleged, in said indictment, that the said Joseph Stone, at the time of demanding of the said Seth the cause of his travelling on the said day, had in his possession any badge of his said office, or that he exhibited any sign or token by which the said Seth could be informed that he, the said Joseph, was then and there a tithingman for said town of Shrewsbury, and was then and there engaged in executing the duties of the said office.
    3. That it is nowhere alleged, in said indictment, that the said Seth, at the time he refused to answer the said Stone, had any
    . knowledge, or any reason to believe, that the said Stone was then and there a tithingman for said town of Shrewsbury.
    
    
      Lincoln and L. Bigelow, for the defendant.
    Whatever is necessary to be proved in support of the indictment should be substantially alleged therein. Unless the tithingman was legally sworn to the discharge of the duties of the office, he had no right to make the inquiry of the defendant, and the latter was under no legal obligation to answer him. The indictment alleges only that he was duly chosen. 
    
    *It was material "to allege that the defendant knew Stone to be a tithingman. The refusing to answer another person could not be an offence against law. When one does an act malum in se, he acts at his peril; but, where the act is not unlawful in itself, it is necessary to allege a scienter, or a criminal intent.  If it is not essential to the offence charged in this indictment that the party knows the inquirer to be a tithingman, every traveller must, at his peril, stop and answer to the questions put to him by any impertinent man he meets. By the provincial act of 10 Will. 3, c. 8, every tithingman is required to have a staff of a certain description as a badge of his office ; and this provision of law has never been repealed to the present day.
    The conclusion of this indictment, as it charges an act made reprehensible only by statute, should have been, against the form of the statute in such case made and provided,. This is an indispensable requisite.  The conclusion in this case is “ against the peace and the statute.”
    
      It is humbly insisted that the provision of the act upon which this indictment is framed, is an attempt at legislation beyond the constitutional limits assigned to the government by the declaration of rights. The twelfth article of that declaration provides that “ no subject shall be compelled to accuse or furnish evidence against himself.” Under the statute in question, if one is travelling unnecessarily, and is inquired of, if he speak the truth, he must accuse and furnish evidence against himself, and this to a person who is bound by his oath of office to prosecute the offender, and to whom a part of the penalty imposed is to enure on conviction; if he answer untruly, that he is necessarily travelling, another penalty attaches ; and if he is silent, he is still subject to a distinct penalty.
    
      White, (County Attorney,) for the commonwealth.
    The twelfth article of the declaration of rights refers solely to judicial proceedings. The provision of the statute on which this prosecution is grounded is intended for the convenience and ease of travellers. If * they give a sufficient reason for their travelling, they are permitted to pass without further animadversion. Nothing is required by the law' but that courtesy which ought always to prevail between the citizens and the officers of the law. Long since the declaration of rights was adopted and established, wardens had authority to arrest and detain travellers on the Lord’s day. The present provision is, then, a great relaxation, and may justly be considered as very lenient.
    As to the want of an allegation that the tithingman was sworn, the allegation that he was a tithingman includes his election and oath of office; and “ being a tithingman,” is tantamount to a direct allegation that he was such. 
    
    As to the want of the allegation respecting the officer’s staff", the dimensions, color, and ornaments of which are prescribed with so much minuteness in the provincial act, it is to be noted that all the provisions of that act relating to tithingmen, except this respecting the staff", are reenacted by the revised statute of 1786, c. 68, whereby the legislature have plainly shown that they no longer require the exhibition of the badge; which, indeed, in practice bad disappeared long before the period of that statute.
    As to the want of a scienter alleged, it is answered, that the indictment charges the offence in the very words of the statute; which has always been considered the best, as well as the safest, way of charging crimes created by statute.
    The conclusion “ against the statute,” is more forcible than against the form, of the statute ; as it avers the offence to have been committed against both the substance and form of the statute.
    
      
      11) 1 Chitty on Pleadings 216. —2 Burr. 1127, Rex vs. Wheatly. —Com. Dig.Pleaaer, C, 50.
    
    
      
       1 Chitty, 376. — 5 Burr. 2667, Rex vs. Woodfall. — 6 East, 473, Rex vs. Phillips. — Com. Dig., Action on the Case for Deceit, F, 3; Jus£icest M, 12; Indictment, G, 1, 3. — 1 East, C. L., Homicide, § 81, 82, 83.
    
    
      
       7 Mass. Rep. 9, Commonwealth vs. Springfield. — Bac. Abr., Indictment, H, cites Hawk. P. C. c. 25, § 126. —11 Mass. Rep. 279, Commonwealth vs. Stockbridge. — 2 East, 333, Lee vs. Clarke.
      
    
    
      
       2 Burr. 832, Rex vs, Boyall.
      
    
   Parker, C. J.

By the statute of 1791, c. 58, tithingmen are authorized and required to examine such as they find travelling on the Lord’s day, and whom they have reason to suspect of travelling unnecessarily; and if such travellers refuse to give their names, or to answer such inquiries as are made touching the cause of their travelling, they are. subjected to a penalty.

* The defendant has been indicted and convicted for not answering such questions as were put to him by the tithingman who caused the prosecution; and a motion is now made to arrest the judgment, on account of the insufficiency of the indictment.

The first objection is, that it is not alleged in the indictment that the tithingman was sworn into office. This is not necessary. To constitute a tithingman, it is necessary that he should be sworn; and to allege that he is a tithingman, involves the allegation that he is sworn.

The next objection is, that it is not alleged that the tithingman had any wand or badge of office. This, although necessary under a former law, is not required by the present statute, and therefore need not be alleged.

The third objection is, that it is not averred that the defendant knew Stone to be a tithingman. But this is not necessary, he being a public officer. The indictment in this particular follows the statute. The scienter is not a constituent part of the offence, as in possessing counterfeit bank notes. If the defendant did not know him to be an officer, this, would be good defence by the com raon law, and need not be negatived in the indictment.

Motion in arrest overruled  