20 Conn. 232 | Conn. | 1850
In this case two errors have been assigned ; the first, that the county court refused to arrest the judgment ; and the second, that the court admitted illegal testimony.
1. It is insisted, that the third count in the information, upon which alone judgment was rendered, is bad, for duplicity, uncertainty, and repugnancy. It charges the defendant below with selling and offering to sell, spiritous liquors, each of which acts, it is said, constitutes a distinct offence ; and therefore, the count is bad for duplicity.
But there is nothing in the information, showing, that these acts might not have been parts of one-and the same transaction. They are alleged to have been done, at one time and one place. The sate may have been made in consequence of an offer to sell, made by the defendant.
No matters, however multifarious, will operate to make a declaration or information double, provided that all taken together, constitute but one connected charge, or one transaction. Rowles v. Lusty, 4 Bing. 428. (15 E. C. L. 291.) Thus, an information charging a person with having committed an assault upon another, and beaten him, will not be bad for duplicity, although assaulting a person may be a criminal offence, as well as beating him, provided both were parts of one and the same transaction.
So an information for a burglary, stating that the prisoner, in the night season, broke and entered a house, with intent to steal, and did in fact steal therein, will not be defective.
If an authority upon this subject were needed, we have only to refer to the late case of Regina v. Bowen, 1 Car. & Kir. 501. (47 E. C. L. 501.) There, the indictment stated, that the prisoner feloniously and wilfully did destroy, deface, and injure a certain register of baptisms, marriages and burials, in violation of a statute making a person committing either of those acts, guilty of felony. The counsel for the prisoner proposed to demur specially, upon the ground that the prisoner was charged with more than one offence. But, upon an intimation from Tindal, Ch. J., that the prisoner might be bound by the demurrer, and not be allowed to plead
It is further claimed, that the information is bad, because it is averred, that the defendant did the acts complained of, by himself and by an agent. But if the court can see, that the acts might have been joint, and could have been performed by both, acting together, then the averment will be in conformity with the truth. Now, there can be no more difficulty in two persons uniting in the sale of spiritous liquors, than in the commission of a burglary or a robbery-offences for which two persons are often joined in the same bill of indictment.
Had the information stated, that one sold rum, and the other wine, there would be weight in the objection. Two separate acts, performed by two persons, acting separately, would then be charged. But that is not the present case. All the acts, although performed by two persons, were done at one and the same time. And, as the statute makes the defendant liable for them, whether the offence was committed by him or by his agent, no injustice is done him, by charging him with.an offence committed by him and his agent together. The objection would not prevail, even upon a special demurrer.
2. The other error assigned, is, that the county court improperly admitted testimony as to the intoxication of Whitney, subsequent to the sale.
But the testimony was received, not for the purpose of showing that he was then a common drunkard, but that he continued such, to the time of sale, or rather that, at that time, there had been no reformation in his previous habits.
When the liquor was sold to him, he may have been perfectly sober ; and that condition may have been the result of a reformation, or of a mere inability to procure the means of intoxication. But when it was shown, that his subsequent habits were the same as they had previously, been, the presumption as to a reformation was removed.
The question whether, at a given time, Whitney was a common drunkard, stands much upon the same ground as the
Again, it is said, that in construing the statute relating to the sale of ardent spirits, it has been hidden, that a person who sells to a common drunkard, may be subjected to the penalty, without proof that he had knowledge of the character of the vendee ; and therefore, he ought not to be affected, by acts of the vendee, subsequent to the sale, and of which he could have no knowledge, at the time of the sale. Barnes v. The State, 19 Conn. R. 398.
The legislature, for the purpose of protecting, in some measure, the community from the many crimes committed by common drunkards, while under the maddening influence of ardent spirits, may have made it the duty of the rum-seller to see to it, at his peril, that he does not sell to such persons. Yet the rigour of such a statute will not change the rules of evidence, without some provision to that effect, which is not claimed in the present case. The mode of determining the question, whether a person, at a given time, was a common drunkard, must remain the same, as if the statute had been less rigourous in its operation. Besides, as already remarked, the evidence of subsequent acts of intoxication, was not received, for the purpose of showing that Whitney was previously a common drankard, but only that there had been no change in his habits&emdash;a fact strongly evinced, by the very act of purchasing ardent spirits.
We are therefore of opinion, that there is no error in the judgment complained of; and so advise the superior court.
Judgment to be affirmed.
