11 How. Pr. 289 | N.Y. Sup. Ct. | 1855
This cause [The People v. Toynbee] comes before us on an appeal by the defendant from a judgment rendered against him by a police justice of the city of Brooklyn, for the alleged violation of the statute for the “ prevention of intemperance, pauperism and crime,” commonly called the prohibitory act. The complaint was preferred before the justice by a policeman, pursuant to the 12th section of the statute. It stated,
The defendant’s counsel objected before the justice that the complaint was defective, because it did not aver that the liquors alleged to have been sold were not liquors, the right to sell which in this state is given by any law or treaty of the United States. If such an averment was necessary, the justice should have dismissed the complaint by reason of the omission. The statute does not direct what the complaint shall contain, and that is, of course, left to the rules of the common law. The complaint is a substitute for an indictment, so far as it relates to substance, and requires, at least, as much particularity—'indeed the authorities say more. Mr. Chitty, in his approved work on criminal law, (vol. 1, p. 281, 2,) says, “ It is a general rule that all indictments, upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it.” “ And [he adds] not even the fullest description of the offense,
The question which has been agitated upon this point is, whether the exception refers to foreign liquors only while in the hands of the importers, and contained in the original cask or vessel, when, according to the decisions of the supreme court of the United States, the right of sale is given by congressional legislation, or to such liquors at all times and in whatever con
The rules which I have stated are applicable to indictments which are preferred by a grand jury, and where the accused may have the benefit of a fair and deliberate trial by jury. But a greater degree of strictness is required in summary proceedings
The next objection to the proceeding before the justice is, that by refusing the defendant’s tender of bail for his appearance at the next court having criminal jurisdiction, there was in effect denied to him the constitutional right to be tried by a competent jury. The result of the denial was, that if the defendant had been tried by a jury it must necessarily have been before one consisting of six persons, out of twelve to be summoned by the constable.
The jurors for our courts of special sessions are generally taken from the immediate neighborhood, and are liable to be influenced ; and their verdict is sometimes controlled by the bias created by a public accusation for the commission of a crime in their own vicinity. They are ordinarily selected too by an officer who has had an agency in the preliminary steps against the accused, and who as is sometimes the case with police officers, may be anxious to procure his conviction. Whereas, the jurors in our higher courts of criminal jurisdiction are designated by responsible town officers ; their names are deposited in a box kept by the county clerk, and are drawn by him in the presence of some of the county officers, and they are taken from the whole county. These measures are taken for the purpose of having intelligent and impartial jurors, and they are generally effectual. Besides, it is a matter of some importance
On looking over the entire statute, it seems to me that the provisions relative to the trials under it indicate an intent to confine them to the special-sessions. The magistrate who issues the original process constitutes the court; they are identical. The fifth section provides that such court shall not be required' to take the examination of the accused, but shall proceed to trial as soon as the complainant can be notified. The provisions of the act relative to appeals apply exclusively to judgments in the courts of special sessions, and are mostly inapplicable to trials before the general sessions, or oyer and terminer. Many of them are very important. The right of appeal is given to the complainant as well as the defendant. If the defendant appeals, he is required to give a satisfactory bond that he will not, during the pendency of the appeal, violate any of the provisions of the statute. The ordinary power of amendment, of the appellate court, is considerably increased, and any judgment or verdict against evidence may be reversed on appeal, as (in the words of the statute) 11 in civil actions.” It is not material to inquire here whether verdicts against evidence in civil actions can be reversed on appeal. I am considering the provision simply as indicative of the intention of the legislature. Now if it was designed by constituting offenses under the act misdemeanors, to confer the right to try the accused in the courts of general sessions and oyer and terminer, the legislature would, I think, have made the provisions relative to appeals applicable
I am, therefore, inclined to agree with the justice in the conclusion to which he arrived, that so far as 'the statute went, he could not be required to take the proffered bail. But the more important question arises whether the (in effect) denial of the privilege claimed by the defendant is not violative of the constitutional right of trial by jury. If it be so, the enactment, so far as it relates to compulsory trials in the courts of special sessions, is void.
The constitution of this state which went into operation in 1847, ordains, (article 1, § 2,) that the trial by jury in all cases in which it has been heretofore used, should remain inviolate forever. The language is strong and evinces the importance which was justly attached to the privilege. The terms used in the constitution must be applied according to their meaning at common law, unless a different interpretation is clearly indicated. There is no evidence of any different intent in reference to this provision, nor can any be inferred. A jury, by the rules of the common law, must consist of twelve men. It was therefore very properly remarked by Johnson, J., in Cruger v. The Hudson River Rail Road Company, (2 Ker. R. 198,) that the constitutional provision which I have quoted, imports a jury of 12 men, whose verdict must be unanimous. In reference to the cases to which it refers, and whether they include the subsequently created cases, I will quote from an opinion in the case of Wood v. The City of Brooklyn, (14 Barb. 432,) because it expresses my present sentiments on this subject. “ This provision relates to classes and of course includes the individual cases which they comprise. In no other way can constitutional enactments preserve that continued efficacy which is so
The only remaining question which I deem it proper to consider, is : Whether the act in question, so far as it purports to prohibit the sale of intoxicating liquors to be used as a beverage, is valid. The objection urged against that feature of the act is, that it is an exercise of despotic power, calling for an unconstitutional interference with the rights of property. All civilized nations agree in asserting the rights of property, and
It must be conceded that an unlimited and unrestricted power to take the life, the liberty, or the property of our fellow man, is despotic. And it matters not whether it is lodged in the hands of one or many, or whether the depositories are elective or hereditary, the character is the same. It was contended on the argument by the counsel for the people, that the legislature of this state possess despotic legislative power by reason of the general constitutional grant. To that I cannot assent. It is undoubtedly true that absolute power exists originally in the people constituting a distinct and separate community. It is competent for them to establish for themselves a despotic government in one man, or many men, if they should choose to do so, although an intention to confer absolute power can never be inferred, and certainly not in a country claiming to be free. But the people of this state when they entered the union deprived themselves of the power of establishing any other than a republican form of government. (Const. of U. S. art. 4, § 4.) There is not, perhaps, any very accurate description of a republican form of government, but it is generally understood that it cannot be subject to a despotism in any of its public functionaries. The man who is the subject of despotic power, and I care not whether it be in the legislative or executive department, is a slave and not a republican. Liberty and despotism can never exist together". No general grant would confer an unlimited power over the lives, the liberty, or the property of the citizen. It was well remarked by Judge Story in Wilkinson v. Leland, (2 Peters, 657,) that “ the fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this country would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.” And Judge Bronson said in Taylor v. Porter, (4 Hill, 145,)
That intoxicating liquors were property at the time of the adoption of our state constitution there can be no doubt. They had been for many ages in general use, as well by the prudent and the virtuous as by the reckless and the vicious. To have denied to the farmer his cheerful glass of cider, or to the laboring man when worn down with fatigue, the support of his customary restorative, would have excited as much astonishment and created as much resistance in the old time, as would the denial of tea or coffee to our ladies at the present day. Whether those who have gone before us, including the greatest, wisest and best of their days, were right in thus indulging their tastes, or whether their conduct was indiscreet and deserved
It was said by Chief Justice Taney, in the license cases from Rhode Island, Hew Hampshire and Massachusetts, (5 Howard, 577,) that “ spirits and distilled liquors are universally admitted to be subjects of ownership and property, and therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists and Catron, J., remarked, in the same cases, that “ ardent spirits have' been for ages and now are subjects of sale, and of lawful commerce, and that of a large class throughout the civilized world, is not open to controversy. So our commercial treaties with foreign powers declare them to be, and so the dealings in them among the states of this union recognize them to be.” That such liquors are property still admits of no doubt. Their importation from foreign countries is expressly sanctioned, and they are heavily taxed by congressional legislation. If the acts of congress had been legitimately passed by the legislature of this state, we should have been virtually precluded from denying the characteristics of property to what we had directly admitted within our borders and subjected to taxation. The faith of states, which should ever be preserved inviolate, would have forbidden it. We are equally, though possibly not as directly, concluded by the acts of a general government, of which by our own volition we are a member. Intoxicating liquors are still freely admitted and heavily taxed; and their sale by the importer, while in the cask or vessel in which they were introduced into the country, and their purchase by any one, are authorized beyond the reach of state legislation. It is true that their subsequent sale was, at the time of the adoption of our state constitution, subject— and no doubt lawfully subject—to the regulations contained in our excise laws. The supreme court of the United States has decided, on various occasions, that state laws regulating sales of intoxicating liquors are not prohibited by the constitution or
. As to liquors of domestic origin, there are other and possibly more difficult questions. The control of the state over them has not been, nor unless they are introduced from other states can it be, subject to congressional legislation. Whether it is competent for the legislature to prohibit their manufacture in this state, is not now a question, as that has not been done. They can yet be lawfully manufactured, and when manufactured are still property, and as such are, equally with imported liquors, protected by the aegis interposed by our state constitution.
It is clear, as I have before intimated, that the protection to property extends to and includes its generally conceded characteristics, especially those without which it would be valueless; otherwise it would be but nominal and scarcely that. It was contended, however, by the counsel for the people, that the sale of intoxicating liquors was not prohibited by the statute ; that any of them might be sold for medicinal, manufacturing and sacramental purposes, and that foreign liquors might be sold by the importers, in the orignal cask or vessel, to any one. The permitted sales would be very inconsiderable. And the statute
The inviolability of the rights of private property is subject to the prerogative resulting from the eminent domain always existing in the sovereign power to take it for public purposes, on paying an adequate compensation to the owner. But the compensation must consist of a direct and specific remuneration, and not merely of the general good conferred upon the community by the passage of a beneficent law. The 'prohibitory law does not, nor from the nature of the case could it, make any direct compensation to the owners for the property which it is proposed to sacrifice. So, too, there is necessarily reserved the right of taxation ; but the exercise of such right, although it requires the contribution of a portion of what belongs to the citizen, in effect rather increases than diminishes the value of the entire property, by the security which it enables the public to give to all that is retained.
The interest in the question as to the validity of the prohibitory law is not confined to those only who may own the property which it is proposed in effect to render unavailable to the proprietor; it extends to the entire community. If the shield of constitutional protection can be withdrawn from one species of property, any other may be successfully assailed under some specious pretenses, or indeed without any at all. It is by no
It may be that the ordinary use of intoxicating drinks necessarily leads to their frequent abuse, and that the interests of society require that property in them should be in effect annihilated. If so, they might, and possibly should, be withdrawn from the pale of constitutional protection. But that has not yet been done, nor can it be done by any other power than that by which, our organic laws were ordained. Whatever those institutions require, the court must award, as it is the duty of the judges, imposed upon them by their official position, and under the solemnity of an oath, to support the constitution of our common country, and of our own state, from whatever quarter or under whatever pretense they may be assailed.
I have not the slightest wish to extend any protection or encouragement to the habit of inebriation, or to throw any impediment in the way of the good and the virtuous who are so solicitous to arrest its progress. It is an abomination, and should be suppressed (so far as human means can do it) by precept, by example, and by legitimate legislation. But we should go no further, lest we “ do evil that good might come.” The injunction against that is wise; as the evil is certain, while the production of the good might be, at least, problematical.
The judgment in the court below being erroneous, it must be reversed.
Rockwell, J., dissented from so much of the above opinions as relates to the unconstitutionality of the act. (See next case.)
Judgments reversed.
Brown, S. B. Strong and Bochwell, Justices.]