In an application for a writ of certiorari for the correction of errors in criminal proceedings before a magistrate, the court is bound to intend, in support of the conviction, that the proof justified the magistrate in finding the prisoner guilty of a simple assault, although the complaint charged it to have been made with aggravation, which, if proved, would have required a different sentence upon, or disposition of, the prisoner. Where the time when an offence was committed is not a constituent of it, the omission to state it in a criminal complaint is a defect of form merely, and, as such, aided by ch. 222, § 4, of the Revised Statutes. A charge in a criminal complaint of an assault on two persons, is not bad, as a charge in one count of distinct offences; and upon an application for a writ of certiorari, for the correction of errors, will be presumed, after conviction, to have been supported by proof corresponding to the charge. A warrant of commitment of a convict should not conclude with a general order to the keeper of the jail safely to keep the prisoner " until he be discharged by due order of law," but should distinctly state the terms on which the convict is entitled to his discharge. Such an error is not ground for a writ of certiorari; but if the convict, after having complied with the terms of his sentence, should be detained under such a commitment by the keeper, he will be freed from his illegal restraint by the proper process.
AMES, C.J.
The suggestion that the sentences are erroneous because they are not appropriate to the offences charged in the complaints, supposes, that the assaults were proved to have been made with the aggravating circumstances charged. In support of the convictions we are bound to intend the precise contrary; and, as is possible, that no more of these were proved than would justify the magistrate in fining the prisoner for simple assaults, which, upon such complaints as these, it was quite competent, and in supposable states of the proof, quite proper for him to do.
Another objection to these convictions, that no time is laid in the complaints at which the offences were committed, is not supported by the copies exhibited to us; and if it were, would not avail the applicant, considering the provision of ch. 222, § 4, of the Revised Statutes. Time is not material to such charges as these, other than as giving legal certainty to them; and without it, the charges are defective rather in the manner of stating them, that is, in form, than in any substantial constituent of the offences, that is, in substance. The statute provision just referred to, that "no indictment or other criminal process shall be abated or quashed for any want of form," seems to us applicable to such a defect, since we cannot see how the prisoner was prejudiced by it in his pleas or defences, or can be, if arraigned a second time for the same offences.
Again it is said, that one of these complaints is bad, because it charges two distinct offences in one count, by charging an assault upon two persons, Betsey H. and Julia C. Ide. It is true that in Rex v. Clendon, 2 Stra. 870, S.C. 2 Ld. Raym. 1572, an indictment was held bad upon this ground. In Rex v. Benfield, 2 Burr. 984. 983, however, the King's Bench overruled this case, declaring "it not to be law;" and asked, with some significance, "Cannot the king call a man to account for a breach of the peace, because he broke two heads instead of one?" The precise point decided in this case was, that an information charging a libel upon two might be supported; and if so, there seems to be no reason why the charge of an assault upon two, may not, provided, which we are bound to presume upon such an application as this, the proof correspond with the charge.
Lastly, the warrants of committment, it is said, are too general in their concluding order to the keeper of the jail, to keep the applicant " until he be discharged by due order of law." It is true, that although they correctly recite the terms of his sentences, they should have been more specific to the keeper in this respect, so as to leave nothing to his judgment or discretion, as to when, or under what circumstances the applicant was entitled to his discharge. Such a defect, however, is no ground for a writ of certiorari. If the keeper of the jail should detain the applicant under these warrants after he had fulfilled the terms of his sentences, it will be time enough for him to ask, and quite easy for the court to afford him, relief.
The applications must be denied.