20 Ill. 430 | Ill. | 1858
The defendant was indicted by a grand jury, and tried in the Warren Circuit Court on a charge of selling iquor without a license to keep a grocery. The jury found a verdict of guilty. The defendant entered a motion for a new ¿rial and in arrest of judgment, which motions were overruled by the court, and judgment rendered on the verdict for a fine of $10 and costs; and the defendant brings the case to this court >y appeal.
The motion in arrest of judgment should have been allowed by the court below. It nowhere appears from the record, that the indictment was ever returned into open court. It is error to put a defendant on trial on an indictment unless it is returned •nto open court, and the only evidence of that fact must be found in the record of the case. Gardner v. The People, 3 Scam. R. 85; 4 Black. Com. 306; R. S. 1845, p. 309, sec. 3. This requirement is proper for the protection of the citizen against being forced to defend himself against charges never acted upon or presented by a grand jury. If it were otherwise, by either accident or design, he might -be compelled to make such defense.
It appeared in evidence, on the trial below, that the city of Monmouth, in Warren county, was legally incorporated, and had passed an ordinance declaring the keeping of spirituous liquors on deposit or in store fqr sale, and selling it, a nuisance, and prcvided a penalty. It also provides the mode of proceeding for the recovery of the penalty. There is a provision in the ordinance that its provisions shall not apply to sales by any established apothecary or druggist, for sacramental, chemical, mechanical or medicinal purposes, provided the same is sold in good faith under the prescription of a physician, etc. There was no question raised as to the authority of the city to pass this ordinance. The evidence shows that defendant sold spirituous liquor in a less quantity than one gill, and received ten cents in payment, in the month of March, 1857, at his drug store, in the city of Monmouth, county of Warren, and State of Illinois. That this ordinance was in force and unrepealed at the time defendant sold the liquor.
It is urged that when the legislature gave to the city of Monmouth the power to license, regulate and prohibit the sale of spirituous liquors in the city limits, that they repealed section 132, of the chapter R. S. entitled criminal jurisprudence. That section imposes a penalty for selling liquor without a license. The act incorporating the city of Monmouth, gives the city the exclusive right to license the sale of spirituous liquors. If they grant a license, that license will protect the holder from the penalty of section 132. But if they fail or refuse to license the sale of such liquors, the general law of the State would be violated by their sale in the city limits. The charter of the city does not in terms repeal the general law, and if it operates as repeal, it is because the provisions of the two acts are repugnant. Jurisdiction may be concurrent and yet not repugnant. This same charter authorizes the city to levy taxes, to suppress gaming and bawdy houses, to suppress gaming, and disorderly conduct, and to impose penalties for a breach of the peace, and many other things that are prohibited by general enactments of the State ; and if the grant of power to license and regulate the sale of spirituous liquors repeals the general law on that subject, it must follow that the State has, for the same reason, no power» to levy taxes, to punish persons for keeping gaming houses, for gaming, for breach of the peace, or any other offense that the city is authorized to punish, when committed in the city limits. Such a power would be antagonistic to the very principles of government. An act may, at the same time, be an offense against the United States government and also against a State government. Moore v. The People, 14 Howard R. The same act may also constitute several crimes or misdemeanors, and the trial and punishment for one will be no bar to a prosecution of another growing out of the same act. Freeland v. The People, 17 Ill. R. 380. It has been held that by the legislature conferring upon an incorporated city or town-such power, does not, by implication, repeal the general law on the same subject; but to have that effect, the repeal must be express or the acts repugnant in their provisions. The People v. Morris, 13 Wend. R. 325 ; Village of Rochester v. Harrington et al., 10 Wend. R. 547; Baldwin v. Green, 10 Mo. R. 410 ; Harrington v. The State, 9 Mo. R. 525; Stone v. The State, 8 Blackford R. 361. We are of the opinion that both reason and authority are in favor of the construction that the legislature did not, by merely giving the city the right to act, repeal the general law of the State on the same subject. What effect the recovery of a penalty under the ordinance might have, we are not now called on to determine, and until that question is presented for determination, we are not disposed to discuss it.
The judgment of the Circuit- Court is reversed, and the cause remanded.
Judgment reversed.
