34 App. D.C. 453 | D.C. Cir. | 1910
delivered the opinion of the Court:
The questions raised by the special -plea, the demurrer to which admits the specific allegation that the intoxicating liquors which were destroyed were kept and offered for sale without a license, may be briefly disposed of.
Intoxicating liquors, whether exposed for sale unlawfully or not, are property in the District of Columbia, and cannot be taken or destroyed save by due process of law. Assuming for the sake of the argument, that the keeping for sale without license. constitutes a public nuisance as well as an offense, the fact affords neither justification nor excuse for their destruction by the defendant. The sale of intoxicating liquors without license is prohibited by law, and may be prevented and punished, but this can only be done through the agencies and in the manner provided by the law. The abatement of public nuisances and the enforcement of the penal laws are matters of public duty and administration; and the interference of private persons, save in the making of complaints before the proper public officers and tribunals, is itself a nuisance, which, if accompanied by acts of violence, renders the wrongdoer liable both to civil action and criminal prosecution. Mob law can have no recognition in our system and should be sternly repressed in its beginning.
The serious questions in the case arise out of the procedure adopted for the punishment of the offense committed. The information purports to be found on the act of July 29, 1892 (21 Stat. at L. 322, chap. 320), and the amendment thereto
. “That it shall not be lawful for any person or persons to destroy, injure, disfigure, cut, chip, .break, deface, or cover or rub with, or otherwise place, filth or excrement of any kind upon any property, public or private, in the District of Columbia, or any public or private building, statute, monument, office, dwelling, or structure of any kind, or which may be in course of erection, .or the doors, windows, steps, railing, fencing, balconies, balustrades, stairs, porches, or halls, or the walls, or sides, or the walls of any inclosure thereof; or to write, mark, or paint obscene or indecent words or language thereon, or to draw, paint, or write obscene or indecent figures representing obscene or indecent objects; or to write, mark, draw, or paint any other word, sign, or figure thereon, without the consent of the owner or proprietor thereof, or, in case of public property, of the person having charge, custody, or control Thereof, under a penalty of not more than $50- for each and every such offense.”
Sec. 18 requires prosecutions to be in the name of the District of Columbia.
The first amendment to this act was that of July 8, 1898 (30 Stat. at L. 723, chap. 638). The only change of importance was to require the act of injury to be wilful. The penalty for a violation of sec. 1 is a fine of not more than $50 for each offense. The object of the amended act of April 21, 1906, exr pressed in its title and indicated by the only change made, was to increase the penalty of the act of 1892. This increase was to a fine of not more than $100 or imprisonment of not more than six months, or both fine and imprisonment.
We do not find it necessary to determine whether the section of the act of 1892, above quoted, applied also to the destruction of movable property, which would require a strained construction at least. If it did apply, it was superseded by sec. 848 of the Code [31 Stat. at L. 1327, chap. 854], which took effect January 1, 1902. That section reads as follows: “Whoever maliciously injures or destroys, or attempts to injure or destroy,
The supersession of the act of 1892 by this section, in so far as it may relate to movable property, is not affected by the amendment of 1906, which simply increases the penalty of the former law. By the section of the Code, if the property destroyed- is of the value of $35 or more, the punishment is infamous, and the prosecution must be by indictment; if less than $35 the punishment is not infamous, and may be prosecuted by information. In prosecutions under the act of 1892 the value of the injured property is immaterial and need not therefore be alleged or proved. But it is material under sec. 848, and hence must be alleged either in the indictment or information, in order to show that the court in which either is presented has jurisdiction of the offense.
There was no allegation of value in this information, and the motion to quash ought to have been sustained. Proceeding with the trial, however, the evidence submitted by the prosecution showed that the destroyed property was of the value of $35. This showed that the police court had no jurisdiction of the offense committed, and should have been followed by the dismissal of the prosecution. The judgment of conviction entered, instead, was necessarily void.
This conclusion renders it unnecessary to determine whether the information was fatally defective for failure to properly describe the destroyed property.
For a like reason it is unnecessary to determine whether, had the property been of less value than $35, a prosecution could have been maintained in the name of the District of Columbia. It may be added, however, that it is very doubtful if such a prosecution could be maintained under sec. 932 of the Code [31 Stat. at L. 1340, chap. 854], which provides that prosecutions for violations of “all penal statutes in the nature of police or municipal regulations, where the maximum punishment is
For the reasons above given, the judgment will be reversed, with costs, and the cause remanded with direction to quash the information. Reversed.