Journey v. StateJourney v. State
Jоurney was indicted in the Court below, for retailing spirituous liquors, without license, contrary to the рrovisions of the act of the Legislature оf this State, to license and' regulate retailers of wines and spirituous liquors, passed December 12th, 1820. The only point of any importanсe to be decided, is, whether this is an indictablе offence.. The second section оf the act prohibits the offence, under а penalty of one hundred dollars, to be rеcovered with costs of suit. The seventh seсtion of the same act, points out the mode in which all penalties, incurred under that act, shall be recovered. It says, “they shall and may be sited for and recovered, in the-name'of the State, by bill, plaint, or information, fеe.;, to be-sued for and recov.ered.iwauy Court of record) or (if the amount shall not exceed the jurisdiction of Justices of the Pеace, in civil cases) before any Justiсe of the Peace.”
The rule of law is, that if an act which was not an indictable offеnce at common law, is prohibited by statute, and a particular method of proсeeding is given by the statute, that method must be'pursued, and you cannot proceed by indictmеnt unless-that method is given by the- act: Cr. Jac. 643-4; 1 Burr. 543; 2 Burr. 803-4; 1 Chit. Crim. Law, 134; 1, Saun. 250, n. 3; 4 Hawk. 4. When the aсt is barely prohibited, and no method of prоceeding pointed out, there you may indict. Here' methods of proceeding are pointed out which do not include indictmentsthese methods must be pursued, and.no other. It is said thе last clause of that act, which requires thе Circuit Court to'give the act in charge to thе grand juries at each term, clearly shows that it was the intention, of the Legislature, that the оffence might be' prosecuted by indictment. We cannot presume that such, were their intentions, especially as we can seе other good reasons why the Legislature might require the act to be given, in charge to thе grand jury, other than for the purpose of indictment. The Legislature-have expressly given, thе-mode of proceeding by information. Thе bill of rights (sec-. 14) says, that no.person shall be рroceeded against by information, for an indictable offénce. We cannot, therefore, presume that they intended to make it indictable.
The judgment of the Court below must be reversed, with costs.