28 N.H. 184 | Superior Court of New Hampshire | 1854
The complaint, upon which the warrant issued in this proceeding was founded, contained two counts, for two distinct offences; one for burning a barn, and the other for burning a ton of hay and six bushels of grain. Were these offences contained in one and the same count in an indictment, it would be good cause for an arrest of judgment, for they are distinct statutory crimes, and different and distinct punishments are attached to each. State v. Nelson, 8 N. H. Rep. 163; Commonwealth v. Symonds, 2 Mass. Rep. 163 ; 2 Burrows, 983 ; 4 Mod. 103.
These offences being set forth in two counts, there might be no cause for arresting the judgment after conviction, should the same be included in separate counts in an indictment ; at the same time, no court ever permits a prisoner to be tried for two distinct and separate crimes upon one indictment, if any objection is made, “ because by such a course he might be confounded in his defence, and the
Either of the charges set forth in the complaint was sufficient, if proved, to convict the respondent of a State prison offence, and the two not being confounded in one count, the respondent could be legally held, and the matter be set right on the finding of the indictment, or at the trial. It does not appear to us, therefore, that the recognizance was bad on this account.
There were several other exceptions taken to the validity of the proceedings, which might be examined, but which we do not propose to consider at this timé, inasmuch as there is one which we think must be fatal to the maintenance of the action.
It appears that Shackford, who was a resident of Allenstown, in the county of Merrimack, where the offence was alleged to have been committed, was brought before C. E. Potter, Esquire, a justice of the peace throughout the State, at Manchester, by deputy sheriff Rowell, he having been delivered to Rowell from Rockingham county, where he was first arrested. The case then finds than u on the same day Chandler E. Potter, Esquire, justice of the peace throughout the State of New Elampshire, made a certificate, attached to the complaint, that Shackford, having been brought before him that day and heard said complaint read, said he was not guilty, and was therefore ordered to recognize, with sufficient surety, in the sum of $600, for his appearance before Aaron Whittemore, Esquire, a justice of the peace in and for the county of Merrimack, and justice of the police court for the town of Pembroke, in said county, on the 2d day of May, 1853, at 10 o’clock, A. M., for examination on the within complaint. The recognizance entered into on the same day by Shackford and the defendant, before Potter, as a justice of* the peace throughout the State, recites in its condition the fact that Shackford having that day been brought before him upon the within com
On the 2d day of May, 1853, Judge Whittemore, as justice of the peace for the county of Merrimack, made a certificate, at Pembroke, that Shackford having failed to appear before him, “ according to the tenor of his recognizance aforesaid, before C. E. Potter, a justice of the peace throughout the State of New Hampshire,” the said recognizance was declared by him forfeited.
This recognizance, thus taken by Judge Potter, and declared forfeited by Judge Whittemore, is the foundation of this action, and the particular question which we are now considering is, whether it was legal, so as to bind the defendant.
The power which is given to justices of the peace throughout the State to act in criminal matters, is to be found in the seventeenth and eighteenth sections of chapter 222 of the Revised Statutes. These sections are as follows :
Section 17. “ Any justice of the peace throughout the State may receive a complaint for an offence commmitted in any county in this State, and may issue his warrant thereon, directed to the sheriff of any county in this State, or his deputy, or any proper officer, authorizing such officer to apprehend such offender and to bring him before such justice, or some justice in and for the county in which the offence was committed, for examination.”
Section 18. “ Such justice may order such offender to recognize, with sufficient sureties, to appear at the court of common pleas next to be holden in and for the county in which the offence was committed, and to answer to said complaint, and to abide the order of court thereon, or may commit such offender to the jail in such county, as is hereinbefore provided.”
These sections are very clear and explicit. They give a
Now, waiving the question whether Shackford was legally before Potter, he had, at most, only power to order him to recognize with sufficient sureties to appear at the court of common pleas next to be holden in Merrimack county, where the offence was committed, and to answer to the complaint, and to abide the order of the court thereon ; or to commit him to jail. The statute nowhere gives him the power to take a recognizance for an appearance and examination before a magistrate in another county, and any such recognizance must consequently be void.
The recognizance, therefore, which was • taken by Judge Potter, and afterwards declared forfeited by Judge Whittemore, was illegal and void, and no action upon it can be sustained. There must, of course, be
Judgment for the defendant.
