State v. Fletcher

5 N.H. 257 | Superior Court of New Hampshire | 1830

By the court.

This indictment is founded upon the statute of July 7, 1827. But it is clear, that it cannot be supported upon that clause in the first section of that statute, which declares, that if any person shall, without license from the selectmen of the town where he resides, sell any wine, rum, gin, brandy, or other spirits, in any less quantity than a gallon, or sell any naked liquor, any part of which is spirituous, he shall forfeit a sum not exceeding fifty dollars, nor less than twenty dollars ; because the offence alleged in this indictment is, not that the defendant sold spirits in less quantity than a gallon, nor that he sold mixed liquors, but that he exercised the business of a taverner, without license. It is the business of a taverner to provide food, drink, lodging and other accommodations for his guests, hut this business may be exercised without selling spirits or wine in small quantities, and the sale of mixed liquors is, without doubt, a part of the common business of taverners ; but it is not necessarily so. It is therefore clear, we think, that when this defendant admits that he is guilty, as charged in the indictment, of exercising the business of a taverner without license, we are not at liberty to understand this as an admission that he is guilty of selling spirits,-or wine, or mixed liquor, illegally, and to sentence him to pay the penalty prescribed by the statute for that offence. When that penalty is sought to be recovered, the commission of the specific acts, upon which the forfeiture is laid, must be alleged in the indictment.

But there is another clause in the statute, which provides, “ that itshall be unlawful for any person to exercise the business of a taverner, &c. without license.” And it is declared that the selectmen of any town, on application, may license any person of good moral character, to exercise the business of a taverner in such town, on the receipt for the use of the town, of a sum not exceeding five, nor less than two dollars. And the question is, whether the indictment can be sustained upon these clauses in the statute ? There is no doubt that these clauses in the statute were intended by the legislature to prohibit the exercise of the business of a taverner without a license. And although no penalty is enacted by the statute for any disobedience to its provisions, in this respect, yet still it is settled that such disobedience is an indictable offence. = The rule is, that wherever a statute prohibits a matter of public grievance to the lib-eriy and security of the people, or commands a matter of public convenience, without enacting any penalty for disobeying its prohibitions or commands, an offender against such statute is punishable by way of indictment for his contempt of its enactments, and may be sentenced to pay a fine for his offence. Hawkins, P. C. book 2, chap. 25, sec. 4 ; 1 Burr. 543, Rex v. Wright; 4 D. & E. 202, The King v. Harris; 2 Burr. 799, Rex v. Robinson.

Motion overruled.