State v. Abbott, 31 N.H. 434

State v. Abbott

31 N.H. 434 | Superior Court of New Hampshire | 1855

Eastman, J.

In The State v. Perkins, 6 Foster’s Rep. 9, it was held that a person who is licensed to sell wine and spirituous liquors, under the act of 1849, for medicinal, mechanical and chemical purposes, and for no other use or purpose, is liable to a penalty, if he sells spirituous liquors for any other purpose than those specified in the act. This respondent, Abbott, was indicted under the same act, and upon that decision is liable to penalties, if the indictments against him are sufficient.

It is objected that the indictments do not allege that the defendant “ wilfully ” sold the liquors, and that they are bad on that account. The section of the statute.upon which these indictments are founded is as follows : “ If any person, not being licensed, shall sell any spirituous liquor or wine, mixed or otherwise, in any quantity as aforesaid, he shall, on conviction, be punished by fine not exceeding fifty dollars nor less than twenty dollars.” Comp. Stat. ch. 123, § 6.

In indictments for offences created by statute, it is, in general, sufficient to describe the offence in the words of the statute, and if, in such case, a defendant insists upon the insufficiency of such an indictment, it devolves upon him *439to show that, from the obvious intention of the Legislature, or the known principles of law, the case falls within some exception to such general rule. The State v. Little, 1 Vt. Rep. 331; Whiting v. The State, 14 Conn. Rep. 487; United States v. Batchelder, 2 Gall. 437; Respublica v. Trier, 2 Yeates 451; The State v. Hickman, 3 Halstead 299; Wharton Crim. Law 91.

In Pennsylvania, an indictment for arson, charging that the defendant did “ feloniously, unlawfully and maliciously set fire,” &c., was held to be sufficient without the word “wilfully,” though “ wilfully ” was included in the description of the offence given in the act constituting it. Chapman v. Commonwealth, 5 Wharton 427. This decision, however, would seem hardly to be sustained by the general current of authorities. 1 Hale 220; Rex v. Davis, Leach 556; Rex v. Turner, 1 Wood C. C. Rep. 239.

It will be observed that the statute upon which these indictments are founded does not contain the term “ wilfully,” or any other equivalent term. It makes the offence to consist in the illegal sale itself; and if a sale is made contrary to the statute and without license, the seller is liable, even though he may be ignorant of the law, and have no intent to violate the statute of the State. It is not an essential part of the offence that the sale be made wilfully and with the intent to break the law; and inasmuch as the statute does not contain the term, it is, in our opinion, unnecessary to be so alleged in the indictment. ■

Where the words of a statute are descriptive of the of-fence, the indictment must follow the language, and expresly charge the described offence on the defendant. 1 Chit. Pld. 357; 1 Hale 535; Foster 424; 1 Leach 264; 1 East P. C. 419; 2 Hale 189, 190; 2 Ld. Raymond 791; 2 Burr. 679; 1 Term 222; United States v. Lancaster, 2 McLean 431; State v. Gibbons, 1 Southard 51; 3 Dyer 363.

It is also necessary that the defendant be brought within all the material words of the statute, and nothing can be *440taken by intendment. State v. Foster, 3 McCord 442; State v. O’Bannon, 1 Bailey 144; Wharton’s Crim. Law 91. And in all cases of offences mala prohibita, the indictment is to be construed strictly. Defects in the description of the offence will not be aided by verdict, nor will the conclusion contra formam statuti cure it. The indictment must show what offence has been committed and what penalty incurred. 2 Hale 170; Com. Dig. Information D.; Lee v. Clarke, 2 East 333; Rex v. Jukes, 8 Term 536; Commonwealth v. Walters, 6 Dana 291; State v. Briley, 8 Porter 472. So it has been held that no allegation of unlawfulness, nor of being against the statute, nor any conclusion will make good the indictment, if it does not bring the fact prohibited or commanded, in the doing or not doing of which the offence consists, within the material words of the statute. State v. Loftin, 2 Dev. & Bat. 31.

Provisoes and exceptions which are contained in distinct clauses of the statute, need not be stated in the indictment, for these are matters of defence which the prosecutor need not anticipate, and which are more properly to come from the prisoner. State v. Adams, 6 N. H. Rep. 534; Commonwealth v. Maxwell, 2 Pick. 139, 141; Rex v. Jarvis, 1 East 643, note; 1 Burrows 148; 1 East’s P. C. 166; 1 Chit. Cr. Law 283; 2 Hale 171; 1 Term 145; 4 Johns. 304; Gill v. Scrivens, 7 Term 27; 6 B. & C. 430; Steel v. Smith, 1 B. & A. 94; Matthews v. The State, 2 Yerger 233; State v. Sommers, 3 Vt. Rep. 156.

But where the exceptions form a part of the enacting clause, it is necessary to negative them in the indictment, in order that the description of the crime may, in all respects, correspond with the statute. 2 Hale 170; 1 Burr. 148; 1 Chit. Pl. 357; 1 East 646, notes; Foster 430; State v. Munger, 15 Vt. Rep. 290.

In Commonwealth v. Thurlow, 24 Pick. 380, which was an indictment for selling spirituous liquors without license, Shaw, C. J., says: “ The court entertain no doubt that it is *441necessary to aver in the indictment, as a substantive part of the charge, that the defendant, at the time of the selling, was not duly licensed.”

In Commonwealth v. Maxwell, 2 Pick. 141, Putnam, J., says: “ The rule is, that where the enacting clause describes the offence, with certain exceptions, it is necessary to state all the circumstances which constitute the offence, and to negative the exceptions; but where the exceptions are contained in separate clauses or provisions of the statute, they may be omitted in the indictment, and may be shown by the defendant as matters in defence.”

Upon these principles, which we hold to be law, were these indictments good ? We think that two of them were, and that two were not. The statute provides (Comp. Stat. ch. 123, § 5,) that “ the selectmen of the respective towns shall license one or more suitable persons to sell wines and spirituous liquors, for medicinal, mechanical and chemical purposes, and for no other use or purpose.” And by the next section, which we have before quoted, it is provided that if any person, not being licensed, shall sell, in any quantity, as aforesaid, he shall, on conviction, be punished, &c.

In Nos. 1 and 2 of these indictments, the allegation was that the defendant, being licensed, &c., did unlawfully sell.. This was not sufficient. The selling without license is what the statute makes the offence to consist in ; the selling for-purposes not specified in the license; and all the substantive-provisions of the enacting clause, as set forth in the section,., should be stated, in order to make the indictment good.. The statute provides for a license to sell “ for medicinal,, mechanical and chemical purposes, and for no other use or. purpose.” The indictments aver a license and sale, and in. order-to make that sale illegal and punishable, the averment should; exclude the conclusion that the sale might have been made-under the license. It should be definite, that it was made-for purposes not specified in the statute and int the license.. *442Nos. 1 and 2, not containing this necessary averment, are bad, and judgment must be arrested upon them.

Nos. 3 and 4, we think, will answer. In both, the sales are declared to be unlawful, contrary to the statute, and not for medicinal, mechanical or chemical purposes, or either of them. This excludes the conclusion to which the other indictments were liable ; and upon these there should be

Judgment on the verdicts.