Farrell v. Warren, 3 Wend. 253

Farrell v. Warren

3 Wend. 253 | N.Y. Sup. Ct. | 1829

By the Court,

Sutherland, J.

The only question arising upon the decision of the judge before whom this cause was tried, and upon his charge to the jury, is, whether the defendant, who is admitted to have been a justice of the peace, had a right, upon his own personal view of the offence committed by the plaintiff, to order him into the custody of a constable for safe keeping, (without issuing a warrant,) until he could be tried. I am clearly of opinion that he had such authority.

It is conceded that the fourth section of the act for suppressing immorality, (2 R. L. 193,) authorizes an arrest in that manner. The terms are express: “ That all judges, justices of the peace, &c. upon the view of any person or persons offending as aforesaid, are hereby authorized to order such offender or offenders into the custody of any officer, &c. for safe keeping, until he shall be let to bail, or a trial for such offence can be had according to law.” The offence for which the plaintiff was arrested, and of which he was convicted, was created by the act of November 25, 1824, (Statutes, vol. 6, 374 c,) which was merely amendatory of the original act of 1813. The act of 1813 made it an offence to keep a huckster’s shop, &c. upon any part of any highway within one mile from the place where any religious society might be assembled for public worship. The act of 1824 enacts, “ That if any person or persons, &c. shall keep or open any huckster’s shop, See. upon any part of any highway, or upon any lands, waters or streams within the distance of two miles from the place where such religious society shall be actually assembled for public worship, the person or persons so offending shall be subject to the same penalties, and to be sued for, recovered and applied in t! te same manner as is provided in the fourth section of the act entitled an act for suppressing immorality.” The legislature most clearly intended to authorize the same mode of proceeding throughout for the punishment of offenders against this act, as was authorized by the fourth section of the act of 1813. It purports *258to be an amendatory act merely ; it enlarges the circumference ™ which the keeping of huckster’s shops is prohibited, and it is unreasonable to suppose that the legislature, at the same time that they extended the principles of the act of 1813, intended to restrict the means of punishment or conviction provided by that act. Nothing but the most explicit and unequivocal language would authorize such a conclusion. Persons offending against the act of 1824 shall be subject to the same penalties, and to be sued for, recovered and applied in the same manner as is provided in the fourth section of the apt of 1813. One means of recovering the penalties authorized by the 4th section of the act of 1813, is for the justice of the peace, upon the view of any person offending, &c. to order him into the custody of an officer for safe keeping, until he shall be let to bail, or a trial for such offence shall be had according to law. That was the course pursued in this case, and I think it was fully authorized by the act.

This being the only point presented by the charge of the judge, to which the defendant excepted, it is unnecessary to express any opinion upon the merits of the case.

New trial granted.