State v. Thompson, 20 N.H. 250

State v. Thompson

20 N.H. 250 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

The first objection by the defendant arises under the seventeenth article of the Bill of Bights. By that it is declared that the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed, except in cases of general insurrection, in relation to which the legislature may direct a trial in the nearest county.

A more extended experience than our ancestors possessed has shown that a trial of a case by a jury of the vicinage is not always the surest mode of demonstrating the guilt or the innocence of the accused. Prejudices against a person or prepossessions in his favor are carefully to be guarded against in the trial of offences, and these are more likely to exist in the vicinity where a person is known, than in a part of the county where he is a stranger. But the general correctness of this section is not in question. It was by a jury of the vicinage that the common *254law declared a person should be tried, upon the ground, that, coming from the neighborhood of the accused, they would be more likely to be acquainted with the facts than people from a distance. 8 Bl. Com. 359. In this case the examination was had before a justice of the peace throughout the State, in the county of Rockingham; and it is alleged that such an examination is a trial of the character referred to in the Bill of Rights; the offence having been committed out of that county. By Rev. Stat. 450, sec. 17, such justice may receive a complaint, issue his warrant, and cause the offender to be brought before himself, or some justice for the county where the offence was committed, for examination. In this case he was brought before the justice for examination. He was not fined, but was bound over. What was done then came within the letter of the statute, and we are of opinion that the statute does not conflict with the seventeenth article of the Bill of Rights. That, as has been remai’ked, originated in the idea that a jury ought to be returned from the vicinage. The inconveniences of this law were so apparent, that from the time of Edward HI. the practice was gradually relinquished, until, by the act of 24 Geo. H, ch. 18, the jurors were to be returned only from the body of the county. But we have preserved the word “ vicinity,” or vicinage, which is synonymous from the ancient common law; but we do not find that the principle has ever been applied to any trials but those by jury. Other safeguards existed for a proper trial by the justice, which it was supposed were sufficient without this. And we do not feel called upon to say that the legislature may not eonfer this power of a preliminary examination upon justices, especially when such a decision would render invalid the powers conferred upon justices in cases where the respondent is a fugitive from justice, or is charged under the bastardy act. See Rev. Stat., chapters 68 and 122. And our impression is, that even if the respondents had been tried and fined by *255the justice in this case, he would be authorized in so doing for the reasons above stated. This exception must, therefore, be overruled.

The complaint was against Cahew, but the respondent Cahill appeared and answered without objection, and the court were right in overruling the exception.

It is not necessary that the indictment should allege that there had been a preliminary examination before a justice. It is no part of the offence charged, which is complete without it. ¥e have held that an indictment for an assault and battery cannot be sustained unless there has been such an examination and a binding ovér. The proper mode of proving this is a matter of practice, and the evidence should be addressed to the court. The object of the law requiring such a decision probably was that cases of trivial consequence should not come before the grand jury, and that some evidence should be furnished the court that the case before them was one proper for a trial by jury in the first instance ; but the finding of the indictment may properly enough be considered as prima fade evidence that all necessary preliminary steps have been taken. If the respondent wishes to raise the question, he must, before his plea, move that the indictment be dismissed for this cause. He should not lie by until after his plea, which is a notice to the prosecuting officer that he means to try his case, and then raise the question. This motion to the court will be regarded as throwing the burden upon the prosecuting officer of proving that the examination has been had. If no motion is made, we regard the question as waived. As the evidence was offered in this case, it was enough without any allegation in the indictment, as it is merely a part of the proceeding, and is no part of the offence. The motion to quash the indictment for this cause was properly denied.

As to the remaining question, there is no doubt that railroad corporations may make reasonable and proper *256regulations concerning the payment of fares and tickets to passengers. "Whether the regulation were such an one is the question. It does not appear that when the conductor demanded Hill’s ticket, he offered him a check in its place. By delivering up his ticket he would have nothing to trust to but the memory of the conductor to show that he had paid his fare from Exeter to Dover, and that he did not get into the ears at some intermediate station between those two places. If the conductor should forget him, and forget that he had delivered up his ticket, he might, after passing the Madbury station, again call upon him for 'his fare. The passenger would have no evidence that it was paid, and might be ejected from the cars for non-payment, or submit to the imposition of paying his fare twice. This rule that the tickets for whatever remote point, and however numerous may be the intermediate stations, shall be surrendered without a check, immediately after entering the ears, may be very convenient for the corporation, but it is extremely liable to be made the instrument of abuse towards the travelers. It is evident that the surrender of a ticket for a passage over a route covered by several distinct corporations, may cause great injustice. The conductors, however well disposed to do their duty, and to treat the persons who intrust themselves to their charge, with justice, cannot always in the hurry of business and the multiplicity of passengers, remember all who have delivered up their tickets. Where a man has yielded his ticket for the convenience of the corporation, he ought not to be placed in the dilemma of paying again for his passage, or being ejected from the cars. Eor these reasons we are of opinion that the verdict should be set aside, and that judgment should be rendered against the respondents, according to the provisions of the pase.