State v. Corwin

4 Mo. 609 | Mo. | 1837

Lead Opinion

Statement of the case and opinion delivered by

McGirk, Judge.

Corwin was indicted by the grand jury of the county of St. Louis for exercising the trade and business of a grocer, by selling spirituous liquors in less quantities than fifteen gallons, at a time, on the 1st of January, 1837.

Corwin, by his counsel, moved the court to quash the indictment, on the ground that the ofiicence is not indictable by the laws of Missouri. The circuit court sustained the motion, and quashed the same, to reverse which the cause is brought here by a writ of error in behalf of the State. Mr. Bird, for the defendant, contends that inasmuch as the act on which this indictment is predicated, says, the penalties therein contained shall be recovered by bill ,plaint or information, and as an indictment is neither of those things, therefore the indictment is well quashed. Mr. Hudson, the circuit attorney, contends that an indictment is comprehended under the word bill, that an indictment is often in common parlance, and in legal language call a bill of indictment, and that the legislature meant the penalties might be recovered by bill of indictment. To prove this position correct, the circuit attorney has referred the court to Jacobs’ Law Dictionary, title bill;— the defendant relies on the case of Journey v. the State; 1st vol. Mo. R. 428.

The act of 1835, Revised Code, page 291, declares who shall be grocers, and forbids them selling spirituous liquors in less quantities than fifteen gallons without a licence, and fixes the penalty at not less than $20, and not more than $100. The 8th section provides that it shall be the duty of the collector to collect the tax, and also to prosecute, for the recovery of all fines, penalties and forfeitures incurred under the act which shall, and may, be recovered, in the name of the State, to the use of the State, by plaint bill, or information, before any court of competent jurisdiction; or if the amount shall not exceed $90, before a justice of the peace. When we turn to Jacobs’ Law Dictionary, we find under the word bill, several senses in *612which the word has, in legal proceedings, been used; — ■ the first is a bill in chancery, which is a petition to the chancellor, stating grievances, and asking.redress. The second sense is, where a grand jury, ipon a presentment, or indictment, find the same to be trie, they endorse the same a true bill, or billa vera, anc thereupon the offender is said to stand indicted. Tbi third sense is, a proceeding in the King’s Dench, callet a proceeding by bill, or by a bill of Middlesex. This fill was nothing but a capias, issued out of the court of King! s Bench, commanding the sheriff to take the bory of the defendant and have it-bo fore the court of Kind’s Bench, to answer the plaintiff for a trespass; — see 3Blk. Com. 284-5. These are the only three senses in yhich, by the law, a bill has been understood to mean, a node or form of complaint -to a court of justice for any wrong done.

I am of opinion the legislature did not intend to recover these penalties by indictmflit:—

1st: Because this would be to suppose they either forgot, or misunderstood, thel4th section of the bill of rights-of the State Constitutior, which says, “That no person, can, for an indictable offence, bejproceeded against criminally, by information, except, &c.” If the use of the term bill, in the statute, makes the offience indictable, then-the remedy given by information cannot stand with it, and must fall, unless*indeed it can be successfully established that a proceediig in this case by information for the forfeiture would notie a criminal proceeding. If, to understand the word Hll, as meaning a bill of indictment, willtinvolve the intention of the legislature in the above-difficulty, it is right, and proper, to seek some other meaning for the vord.

The second reason why I cannot agree that the legislature intended by the use of the word Mi; to make the offence indictaWe is, that in the same section they say if the penalty does not exceed $¡90, the same may be recovered before ajustice of the peace. Now, this proceeding-is still before the justice to be by plaint, bill, or informa-tion_Can a justice of the peace have a giand jury before him? I think all will agree he cannot. Yet he may entertain a plaint, which is nothing more than a petition setting out the plaintiff’s complaint with a prayer of process, &c. He can entertain, and act, on- an information, and also can issue process, and act on a capias, for trespasses, or for a breach of the statute, where there is to be a forfeiture or fine recovered. But admitting the course of proceeding by bill, is not so easy as by plaint and in*613formation, yet these two remedies are always given, i farther say that these three remedies abound both in American and Bi'tish statutes, and I have never yet seen a case where the me of the word bill was holden to author^ze a proceeding hr indictment.

Where the legis-]ature have speci- or informatio^8”1* aa the'modeof recovering a fine or penalty, an indict-men wi no ie.

I think the case anove cited of Journey v. the State is rightly decided. Tht authorities there cited are supposed to be law, and the ease before us is no way materially different from that cate.. It is established by those authorities as Cited by Eicon, that where a new offence is created, and a particulaimethod pointed out, for the prosecution thereof, if an indictment is-not mentioned, it is excjH{je(j. an¿ js a]s0 S£¿¿ that if a statute give a recovery by actionof debt, bill, plaint, or information, or otherwise, an indictment will lie. This must be by reason of the word otherwise, which,m my opinion, is well enough generally as a rule.

The judgment of the court below is affirmed, with costs..





Concurrence Opinion

Tompkins, J.

I concur in th® above opinion.