41 Vt. 504 | Vt. | 1869
The opinion of the court was delivered by
This was a complaint by the grand juror of the city of Burlington against the respondent for being a manufacturer of intoxicating liquor in that city, contrary to law. The case was tried before the recorder’s court, upon plea of not guilty. Several exceptions were taken by the respondent to the rulings of the court admitting testimony against him, and exception was also taken to the decision of the recorder which denied the respondent an appeal from the judgment of that court to the county court. The charter by which the police court of that city was created made no provision for the trial of causes in that court by a jury of twelve men; it made the judgment of the court final in criminal causes within the jurisdiction of a justice to try and determine, and allowed no appeal to the county court. The main question is as to the constitutionality of these provisions of the charter. The respondent claims that the right to a trial by a jury of twelve men is secured to him by the constitution of the state, and that the charter, in so far as it confers final jurisdiction in criminal causes upon the recorder’s court without the right to trial by jury or appeal, is unconstitutional and void. It appears that the charter was amended in 1867, by which amendment the right of appeal is given where the fine imposed exceeds $10, yet the question presented for adjudication is important to these parties, and perhaps otherwise important, especially as the principle in
' The- expression in article 10, “ all prosecutions for criminal offenses,” means all prosecutions for crimes or misdemeanors in the trial of which the “ issue in fact”- is proper for the cognizance of a jury. A crime or misdemeanor is an act committed or omitted in violation.of a public law either forbidding or commanding it. 4 Black. Com., 4. This general definition comprehends both crimes and misdemeanors which, properly • speaking, are mere synonymous terms, though in common usage the word “ crime” is made to denote such offenses- as are of a deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of “ misdemeanors” only. 4 Black. Com., 4. In the English law, misdemeanor is generally used in contradistinction to felony, and misdemeanors comprehend all indictable offenses which do not amount to felony. Section 2 of article 4 of the Constitution of the United -States contains the expression, “ treason, felony or other crimes.” In that expression the words “ or other crimes” evidently mean a misdemeanor. Criminal offenses mean simply offenses. Crimes include all offenses, and offenses include all crimes, whether felonies or misdemeanors. A misdemeanor is an offense against the public, punishable by fine or imprisonment in a county jail, or both of said penalties, and in this respect is distinguishable from a felony or infamous crime, which subjects the perpetrator to the punishment of death or imprisonment in a state prison. Crime and misdemeanor in other respects are synonymous. It is said that the word “ crime” has no technical meaning in the law of England, but when it has a reference to positive law it comprehends those acts which subject the offender to punishment. In positive laws those acts are denominated private injuries for which the law has provided only retribution or a compensation in damages, but when from experience, it is discovered that this is not sufficient to restrain within moderate bounds certain classes of injuries, it then becomes necessary for the legislative power to raise them into crimes and to endeavor to repress them by the terror of punishment. It is clear that the legislature has power to enact all laws
The manufacture of intoxicating liquor is the source of intemperance. Intemperance, the legitimate consequence of the use of intoxicating liquor as a drink, has been and is the source of innumerable evils to individuals and society, and productive of more wretchedness and crime than any other cause. This being so, the act of our legislature entitled an act “ to prevent the traffic in intoxicating liquors for the purpose of drinking,” prohibits the manufacture of such liquors and renders the violators of its provisions subject to public and severe punishment. The act provides that the manufacturer of intoxicating liquor shall, for the first offense, forfeit and pay the sum of one hundred dollars and costs of prosecution; for the second and every subsequent conviction, he shall pay two hundred dollars, and on being convicted thereof the third or any subsequent time, he shall be imprisoned in the county jail not less that four nor more than twelve months ; that such forfeiture and payment is to be recovered and such penalty to bé inflicted upon complaint, information or indictment. The act, in terms, makes the manufacture of intoxicating liquor an offense, an indictable offense.
Is the issue in fact, upon plea of not guilty, “ proper for the cognizance of a jury ?” This question must depend upon the nature of the offense, its forfeiture and penalty, and the object sought by the prosecution. Independent of the statutory prohibitions, the mere act of manufacturing intoxicating liquors, (if they are not used), incurs no guilt or wrong except that arising from the loss occasioned by the manufacture of an article not needed. The act of 1852 is properly entitled an act “ to prevent the traffic in intoxicating liquors for the purpose of drinking.” The mischief results from the use of such liquors as a drink. The chief objects, then, of the prohibition as to the manufacture, are to pre
Holding this prosecution to be one “ proper for the cognizance of a jury,” we are led to inquire whether the right of a trial by jury is, by the constitution, guaranteed to the respondent ?
It would seem that the words in the 10th article of the bill of lights, in respect to trial by jury, are broad enough to include the case at bar. But this right does'not depend solely upon the provisions of that article. The provisions of article ten were embraced in the first constitution of this state, adopted July 2, 1777. The 13th article of the bill of rights in that constitution is, “ that in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.” The first ten articles in addition to, and amendment of the constitution of the United States, were proposed in 1789, and were finally ratified on the 15th day of December, 1791. While those amendments were pending before congress, the right of trial by jury was discussed thoroughly by the first jurists and statesmen of the land, both-in and out of congress, in which the ablest jurists and legislators of our own state participated, producing in the minds of the people the conviction and judgment that trials by jury, in all cases “ proper for the cognizance of a jury,” should be made of universal application. Therefore, the present constitution of this state (article 12) which was adopted in 1793, provides “that when any issue in fact, proper for the cognizance of .a jury, is joined in a court .of law, the parties have a right to trial by jury, which ought to be held sacred.” By the very language of this article, the right of trial by jury is made of universal application where the issue is proper for' their cognizance. The right of trial by jury is made to depend upon the fitness of the issue for this mode of trial, and not upon the question whether the parties can enjoy that right in the court which first takes cognizance of the issue. Article 6, of the amendments to the constitution of the United States, provides that “ in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury.” This article, it is believed, has always been construed to
In England the constitutional trial by jury was ever esteemed a privilege of the highest and most beneficial nature. In magna charta this mode of trial is insisted on as the principal bulwark of liberty. Judge Blackstone, commenting on trial by jury, says: “ The liberties of England can not but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to maké,) but also from all secret machinations, which may sap and undermine it, by introducing new and arbitrary methods of trial by, justices of the peace, commissioners of the revenue and courts of conscience.” In many cases in England the statutes, authorizing a summary conviction before a magistrate, give an appeal to the sessions ; and the party thus convicted has in general a right to a certiorari to
Section 45 of chapter 26 of the Revised Statutes (1839) provides that an appeal from the judgment of a justice to the next stated term of the county court may be taken by either party. The 51st section of that chapter provides, among other things, that no appeal shall be allowed in actions on notes and accounts stated of an amount not exceeding twenty dollars; nor in actions where neither the acl damnum in the plaintiff’s writ, nor the sum. demanded by the declaration, nor the specifications or exhibits of the plaintiff on trial, shall exceed ten dollars ; excepting actions for fine or penalty, actions of trespass on the freehold, and actions where the defendant pleads in offset any bona fide demand or demands exceeding the sum of ten dollars, and actions where the defendant, bona fide, pleads the authority of any court, civil or military, in excuse or justification, or where the defendant shall, bona fide, plead in excuse or justification that he was acting as a public officer, under or by virtue of any tax bill or mili7
The charter of the city of Burlington, by conferring final jurisdiction in criminal causes upon a court before whom the constitutional right of trial by jury could not be enjoyed, has deprived the respondent of a right guaranteed to him by the constitution. No presumption can arise from the provisions of the charter that-the legislature intended to take away the right of trial by jury in all prosecutions for criminal offenses within the jurisdiction of these inferior courts to try, for if such had been the intent of the act it would have been expressed.
Nor can any one suppose the legislature intended that persons accused of such offenses before a police court should be excepted from the enjoyment of a right which they could enjoy if prosecuted for the same offense before any other court in the city or county. The excellence of trial by jury in criminal causes can not be overestimated, for it is in such causes that the accused have the right to demand that the truth of every accusation, whether preferred in the shape of an indictment, information, or upon complaint, shall be confirmed by the unanimous suffrage of twelve men of his equals, indifferently chosen, and superior to all suspicion. In Plimpton v. Somerset, 33 Vt., 283, Aldis, J., says : “The dangerous tendency of the principle of construction which would authorize the legislature to do away with jury trials in regard to rights founded upon statutes passed since the adoption of the con
The cases of State v. Conlin, In re Ellen Dougherty, and State v. Freeman, reported in the 27th Vermont Reports, are cited by the counsel. But it will be seen on examination of those cases that in neither of them was the respondent deprived of a trial by jury nor was the question as to the right of trial by jury; nor as to the right of the legislature to confer final jurisdiction in criminal causes upon justice or police courts, in which the respondent can not have a trial by a jury of twelve men, presented by the exceptions. The obiter dicta in those cases in regard to conferring final jurisdiction in criminal causes upon a justice or police court, to try and decide such causes without the intervention of a jury, are not supported by authority; nor by any approved mode of construction applicable to constitutional rights, and can not have the weight of authority. It will not be denied that the accused in a justice or police court is as clearly entitled to be held innocent until he is proved guilty, and found guilty by an impartial jury of the country,' as when prosecuted in a court which tries causes by a jury of twelve men. In the cases where attempts are made to maintain the constitutional right of the legislature to confer final jurisdiction upon justice and police courts, to try and decide minor offenses without the intervention of a jury, the argument rests upon the fact that it would not be practicable or advisable in all cases to subject the proceedings in justice or police courts in such trials to the delay and expense which would inevitably result from trials in those courts' by a common law jury. But, from these premises it does not follow that the legislature has power to deprive the accused of a constitutional right by conferring final jurisdiction upon a court in which such right can not be enjoyed; for we have already shown that the constitution in express terms made it the duty of the legislature to' create and maintain courts in which the constitutional right of
The other questions raised by the exceptions wo shall dispose of very briefly. As to the rulings of the court below in regard to the testimony of Davis, Rhodes and Burritt, we find no error. In regard to the testimony of Drew, he testified that strong beer was intoxicating, but did not judge from his own experience. He was then inquired of by the prosecuting attorney: “ Is strong beer reputed to be intoxicating?” This was clearly inadmissible. The witness had said in substance that he had no personal knowledge as to whether strong beer was intoxicating. The inquiry, which was objected to, did not call on the witness to state
The judgment of the Becorder’s court is reversed, and the cause remanded.