State v. Huffschmidt

47 Mo. 73 | Mo. | 1870

Bliss, Judge,

delivered the opinion of the court.

Defendant was indicted in Franklin county for selling liquor on Sunday, and demurred to the indictment, but was convicted, and appeals upon the .ground that the offense is not an indictable one. The misdemeanor act of March 27, 1868, p. 81, by prohibiting indictments for misdemeanors, by implication repealed section 30 of chapter 207, Gen. Stat. 1865, which provided for indictments where a fine, penalty, or forfeiture was inflicted. The act repealing the act of March 27, 1868, did not in terms restore said section, and can not do it by implication (Wagn. Stat. 894, § 3); so we are without any statutory provision authorizing indictments in such cases.

The attorney-general contends, and so the court below held, that a statutory offense, where no remedy or mode of punishment is provided, may be prosecuted by indictment, or any other common-law remedy adapted to the case. That is a sound view, but will not avail the State in this case, from the fact that another remedy is provided. Section 29 and the latter clause of section 32, Wagn. Stat. 516, expressly provide that when an offense shall he committed, punishable by a fine limited to $100, such fine may be recovered by civil action, to the use of the county, before a justice of the peace or in the Circuit Court. The offense charged is created by section 35, page 504, Wagn. Stat.; is declared a misdemeanor and subject to a fine not exceeding $50. Hence it becomes subject to the above provision, and the fine was recoverable by a civil action as well while the act of March 27, 1868, was in force, as before its passage or since its repeal. This remedy, then, by civil action being provided, will an indictment lie ? The negative was held by this court in State v. Corwin, 4 Mo. 609, and in Williams v. State, id. 480, and in Journey v. State, 1 Mo. 428. The facts in these cases are sufficiently like those in the one at bar to involve the same principle, and the rule of the common law was applied to them. In accordance with such rule it was held that if an act which was not indictable at common law is prohibited by statute, and a particular method of proceeding is given by the statute, that method must be pursued, and an indictment will not lie unless expressly provided for by the act; although if the act is merely prohibited, and no method of proceeding is pointed out, an indictment will lie. In the revision of 1855 the offense with which defendant is charged is made so by the same act which provides for the civil remedy before spoken of; and, inasmuch as the section providing for an indictment has been repealed and not re-enacted, the civil remedy is alone left.

The other judges concurring,

the judgment is reversed.