53 Me. 536 | Me. | 1866
It is a fundamental rule of law that a person shall not be twice punished for the same offence. But to punish a person for keeping a drinking house and tippling shop, and also for being a common seller of intoxicating liquors, although the same illegal acts contribute to make up each offence, is not a violation of this rule.
It often happens that a person is twice punished for the same act, when the act is of such a character as to constitute two distinct crimes. Thus a man who in company with at least two others commits an assault and battery, or any other illegal act, in a violent and tumultuous manner, may be twice punished, once as a rioter, and again as if he had committed the unlawful act alone. R. S., c. 123, § 2. So where one statute prohibits retailing liquor without a license, and another forbids trading with a negro, it has
We thus see that, while it is true that no person can be ¡twice lawfully punished, for the same offence, yet he may be
It has been held in two cases, in this State, that a conviction for presuming to be a common seller of intoxicating liquors, within a specified period, is no bar to a prosecution for a single sale within the same period. State v. Coombs, 32 Maine, 529; State v. Maher, 35 Maine, 225. A for-tiori, the fact that a person has been convicted of keeping a drinking house and tippling shop is no bar to a prosecution for presuming to be a common seller, although both indictments cover the same period of time and are supported by the same acts of illegal sale. In point of law the two of-fences are entirely distinct. A person may be a common seller and not be guilty of keeping a drinking house and tippling shop; and a person may be guilty of keeping a drinking house and tippling shop and not be a common seller ; and a person on trial for either offence can never be convicted of the other. All the tests usually applied, to determine whether a conviction upon one indictment is a bar to another, fail. Mr. Chitty says that if the crimes charged in the former and present prosecution are so distinct that evidence of the one will not support the other, it is inconsistent with reason as well as repugnant to the rules of law to say that the offences are the same. 1 Chit. Cr. Law, 453. East is an authority to the same effect. 2 East’s P. C., 522. And both cite authorities which fully sustain the position.
If a person, intending to engage in the business of selling liquor, fits up a bar in his house or shop, he incurs no penalty, unless he actually begins the business of selling; for an unexecuted intention to do an unlawful act is not of itself a crime. But the moment he commences to sell, although he sell but a single glass, he has committed an of-fence for which he may be punished; and if he permits the liquor to be drank upon the premises, he is guilty of keeping a drinking house and tippling shop. The law does not require a plurality of sales to constitute this offence.
We thus see how widely different, in point of law, the offence of keeping a drinking house and tippling shop, and the offence of being a common seller, are. In the one case, a single act of selling only is necessary, but that must be in some building, vessel, or boat, and be accompanied with the act of drinking upon the premises. In the other, a plurality of sales must be established, but the sales need not be shown to have been in any building, vessel, or boat, nor to have been accompanied with drinking.
Our conclusion is that the fact that a person has been convicted and sentenced for keeping a drinking house and tippling shop, is no bar to a prosecution for being a common seller of intoxicating liquors, although both indictments cover the same period of time, and are supported by the same acts of illegal sale.
This view of the law disposes of the issue presented in this case. The demurrer is sustained, and the defendant’s special plea in bar is adjudged insufficient.
What judgment shall be rendered? Shall it be final for the State, or only respondeat ouster? Our conclusion is that it must be final for the State. Otherwise the case would be improperly before the law court. For if the defendant can carry a case to the law court, and thus obtain a year’s delay, by simply pleading a special plea, which, if adjudged against him, is followed by no other than a judgment to answer further, he has it in his power, by pleading in succession a sufficient number of such pleas, to postpone the final judgment indefinitely, and perhaps thereby defeat
In this case, the defendant pleaded specially a former conviction. The government demurred. The presiding Judge sustained the demurrer, and the defendant excepted. If the defendant desired to answer further he should have claimed the right then; or, according to some authorities, he should have obtained leave to plead double at the beginning. Not having done either, but having entered his action in this Court, which he could not rightfully do unless it was in a condition to be finally disposed of if his, exceptions should be overruled, his right, if any, to answer further, must be regarded as waived. Exceptions overruled.
Judgment final for the State.