State v. Smith

7 Conn. 428 | Conn. | 1829

Bissell, J.

The question raised upon the record, and now submitted for decision, is, whether the superior court has jurisdiction of the offence charged in the information. In the case of The State v. Knapp, 6 Conn. Rep. 415. it was decided, that this is not a high crime and misdemeanour, cognizable by the superior court. If then that court has jurisdiction of the case before us, it must be by virtue of the statute of 1828. That statute enacts: “ That the superior court shall have ju- “ risdiction of all offences at common law, of what kind and “ degree soever, for which the punishment is not prescribed by “ any statute law of this state.” That this is an offence at common law, is not doubted. Is the punishment for it “prescribed by any statute law of this state” ? The statute, tit. 71. provides for the removal of nuisances and encroachments on highways, directs the mode of prosecution, and inflicts a penalty on the offender. Is the penalty inflicted by this statute, a punishment “prescribed” for the offence ? The answer would seem to be implied in the very terms of the question ; the definition of punishment, being “ the penalty for transgressing the law.”

Again : the statute of 1828 provides, “ That in all cases “ where no punishment is, by statute, fixed for any such com- “ mon law offence, the court, before whom the conviction shall “ be had, may punish the offence, by fine not exceeding five “ hundred dollars, or by imprisonment not exceeding one year, “ or both, at the discretion of such court.” From this provision it is, I think, very apparent, that when any punishment is fixed, by statute, for a common law offence, none other than the statute punishment can be inflicted. In the case before us, it is very clear, that the superior court cannot inflict the punishment prescribed by the statute; and as no other can be inflicted, the offence charged in the information is not punishable by that court. This is conclusive on the question of its jurisdiction. I would, therefore, advise, that the superior court adjudge the motion to quash sufficient; and that the cause be dismissed.

The other Judges were of the same opinion.

Motion to quash sufficient.