State v. Miller, 24 Conn. 522

State v. Miller

24 Conn. 522 | Conn. | 1856

Ellsworth, J.

It is objected to this complaint, that it does not state, with particularity, the quantity and kind of spirituous liquors which were sold by the defendant. Whatever force there might have been in this objection, upon the principles of the common law, in relation to felonies and *527crime, of a high order, there can be none in this state, since the cases of Whiting v. The State, 14 Conn. R., 490, Bronson v. The State, 19 Conn. R., 295, Goddard v. The State, 12 Conn. R., 448, 2 Mass., 144. Besides, we think the statute on which this prosecution is founded, § 24, cures the defect, if indeed there be one at the common law.

The more serious objection to the complaint is, that it does not negative an exception, said to be contained in the enacting clause. The language of the statute,p. 817, § 1, is as follows: “ no person shall manufacture, or sell, by himself, his servant or agent, directly or indirectly, any spirituous or intoxicating liquor, or any mixed liquor, of which a part is spirituous or intoxicating, except as is hereinafter provided.”

Then follow, in the succeeding sections, the exceptions, with certain restrictions and regulations. Now the claim is, that, by the reference in the first section, the subsequent exceptions are incorporated into the first section, and become a part of it, as effectually as if they were recited verbatim, and that they must therefore be negatived, according to the well settled rule of declaring, that an exception, contained in the enacting clause of the statute, must be negatived by the prosecutor or pleader. As to this general rule of law, we believe there is no doubt; but in the application of it, and especially in the language that has been used, quite loose and unguarded as we think, there is great confusion and apparent inaccuracy, even by those who understood the raleas we do. The rule, as everywhere laid down is, that, after words of general prohibition, whatever comes in by way of proviso, or exception, need not be negatived by the pleader, but must be set up by the accused. In this view, it is immaterial whether the proviso, or exception, be contained in the enacting or subsequent sections, if it only follow a general prohibition ; but if there be no general words of prohibition, in the description of the offence, i. e. the clause which describes, and forbids the act intended to be prohibited, then it is only a limited prohibition, and the prosecutor must *528allege, in the complaint, the circumstances necessary to show that the thing prohibited has been done. As, for example, this statute declares that no person shall manufacture or sell &c.—a general prohibition ; all persons are prohibited, but if it had declared that no person under the age of twenty-one, or no colored man should, &c., then there is no prohibition, unless it is alleged that the person accused was under twenty-one, or a person of color. The distinction may not be a very important one, in an abstract point of view, but it is a rule of pleading as well settled as any other and acknowledged to be the law everywhere, and we shall not undertake to alter, or overrule it,—nor is it necessary for the defence of the accused, as he can avail himself of the exception, or proviso, upon the trial, wherever it maybe located in the enactment. In Hart. v. Cleis, 8 John., 41, the prisoner was complained of, for violating a statute of the state, which, in its sixth section, declared, “ that if any person shall export, or attempt to export, any slave, or any servant born of a slave, and made free by virtue of the act, to any place without the state, except as is hereinafter provided &c., he shall pay” &c.—and the next section provides that persons travelling, or removing, from the state may take their slaves &c. The objection to the declaration was, that it is not alleged that Baker, (the slave,) was not liable to be exported out of the state. The declaration however was held good; the court say that the exception forms no part of the plaintiff’s title, or right of action, but is merely matter of excuse for the accused. The excepted cases are not incorporated into the body and substance of the enacting clause, but are given as exceptions, and the instances are not specified in that, but in the subsequent section. The same was decided in 3 John., 438, and 4 John., 304; in the last case, Van Ness, J., delivering the opinion of the court, cites with approbation the rule, as laid down by Treby, C. J., with the concurrence of the rest of the court; 1 Lord Ray, 119, “ that where an exception is incorporated into the body of *529the clause, he, who pleads the clause, ought to plead the exception, but where there is a clause for the benefit of the pleader, (the prosecutor,) and afterward follows a proviso, which is against him, and for the benefit of the accused, he shall plead the clause and leave it to the accused to show the proviso. The same distinction was adopted in King v. Bryan, 2 Str. 1101, and in Spieres v. Parker, 1 T. R., 141. It is of no importance in what section the proviso is placed. By “ clause” in these cases, I understand, the words of prohibition ; that sentence of the section, which at first describes and prohibits the general offence, though it is followed by exceptions, as in the statute in question. All are here forbidden to sell, which language describes the offence, and contains the universal prohibition ; this is enough for the prosecutor. In Rex v. Pemberton, 2 Burr., 1036, the court say, “ it is enough for the prosecutor to bring the case within the general provision of the statute upon which the indictment is founded, if the statute has general prohibitory words in it, and they refer to remarks by Foster. J., Wilm'ot, J., and Dennison, J., that even if there be a clause of exception contained in the same statute which excuses persons under such and such circumstances, or gives license to persons so and so qualified, so as to excuse, or except them out of the general prohibitory words, it must come by way of plea, or evidence. In Com. Dig., (indictment G. 5,) the rule is laid down thus; “ where an indictment is brought on a statute which has general prohibitory words, it is sufficient to charge the of-fence generally in the words of it, and if a subsequent statute, or even a clause of exception in the same statute excuse, or except, persons particularly circumstanced, out of the general words, such excuse, or exception, must come by way of plea, or evidence. In Bac. Ab. (indictment H. 4,) the rule is laid down thus ; “ there is no need to allege in an indictment on a statute, that the defendant is not within any of the provisos, notwithstanding the purview expressly takes notice of them, in such special cases, as are expressed in the act.” *530The same rule of declaring is laid down in 1 Ch. C. L., 190. 2 Hawk. P. C. Wheat. Dig., Hills case, 5 Gratt., 690. 27 Maine R., 154, and in Popham, which contains an early and excellent case.

It is further claimed that the complaint is bad for duplicity. Without expressing any opinion whether there be ground for this objection, we are satisfied the objection comes too late, after verdict. In Arch. C. Law, 53, it is laid down that in civil actions, the usual mode of objecting to pleadings for duplicity is, by special demurrer. Tt is cured by general demurrer, or by the defendants pleading over. In criminal cases, the defendant may object to it, by special demurrer ; perhaps also upon general demurrer; or the court in general, upon application, will quash the indictment. But it is extremely doubtful, whether it can be made the subject of a motion in arrest of judgment, or of a writ of error, and it is cured by verdict of guilty as to one of the offences, and not guilty as to the other, and the present case is that precisely. On this point, I refer to 1 Chit. C. L. 204, and to Lazier’s case, 10 Gratt. R., 708, which was a prosecution for murder, with two counts, apparently for the same murder, varying in no essential particular. It was claimed thatthere was duplicity, but the court held otherwise ; they say “ it is usual to obviate this technical objection of duplicity by inserting in the counts after the first, the word further, before the subject of the offence, but it is not inserted in all cases, and its insertion is in no case indispensably necessary. It is not usual to insert it in indictments for murder, but the party murdered is described in all the counts as the same person, and the instrument of death is not always stated in the different counts to be a different instrument. The indictment, in this case, conforms to precedents, furnished by approved writers on criminal law.”

We do not think there is any force in the objection that evidence of more than one offence was received on the trial. *531The evidence offered, and received, was pertinent to the issue, and was not therefore objectionable. The motion in arrest is not to be allowed, and no new trial is to be granted.

In this opinion, the other Judges, Storrs & Hinman, concurred.

New trial not to be granted.