State v. Williams

| Tex. | Jul 1, 1855

Lipscomb, J.

The petition filed by the Attorney General in this case charges, “ That on the first day of April and from “ thence continually, afterwards, for the space of one month,. “the said defendants, and persons unknown, in the ehar- “ acter of President, Directors and Cashier, as aforesaid, did, “ then and there, without authority of law, at the said office- “ of the said illegal bank, use and exercise banking and dis- “ counting privileges, in this State, for their own lucre and gain “ contrary to the Statute, whereby the defendants were guilty “ of a misdemeanor, and forfeited a fine of five thousand dol- “ lars.” The defendants demurred to the petition, and their demurrer was sustained by the Court. The State declined, by the Attorney General, the privilege of amending, and judgment was rendered for the defendants, from which this appeal was-taken.

The proceedings were instituted under the Act of the State-Legislature of the 20th March, 1848, entitled “An Act to suppress illegal banking and for the purpose of more convenient reference, the 1st and 4th Sections of the Act will be here inserted. They will be found in Hartley’s Digest, in Arts. 87 and 90, as follows : Sec. 1. “ Be it enacted by the Legislature of' “ the State of Texas, that any corporation, company or associ- “ ation of individuals, who shall use or exercise banking or dis- “ counting privileges in this State, or who shall issue any bill, “ check, promissory note or other paper in this State, to circu- “ late as money, without authority of law, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than “ two thousand dollars, nor more than five thousand dollars, “ which may be recovered by a suit in the District Court in the “ name of the State.”

“ Sec. 4. That each and every month that any corporation, “ company or association of individuals shall use or exercise “ banking or discounting privileges in this State, without au*l thority, shall be deemed a separate offence, as defined in the u first Section of this Act; and each and every bill, check, pro- “ missory note or other paper, issued by any corporation, com- “ pany or association of individuals, in this State, to be circu- “ lated as money, without authority of law, shall also be deemed “ a separate offence as defined in the said first Section.”

The objection taken to the petition in this case, is, that it ■does not specify the particular act or acts constituting the of-fence ; that the charge is general. It is admitted that the same strictness is required in the charge in this case, that would be necessary in an indictment, and it is further conceded that the general rule is, that a general charge is not sufficient; that it should also set out the particular specification. But, to this rule there are several exceptions recognized by the law. The Attorney General claims this charge to be an exception to the general rule. His proposition is, that as the offence charged is made as a continued one for one month, that the time and the offence are all that can be regarded as material; if the of-fence has continued for the time, it is altogether immaterial, by which of the constituents of the offence it was done.

• The question now presented was decided by this Court in a ■case between the same parties, (8 Tex. R. 256,) and it was decided that the charge was bad, for want of a specification. I prepared the opinion under circumstances very unfavorable to •a thorough investigation of the question. I therefore very cheerfully expressed to the Attorney General my willingness that it should be raised again in this case ; and I believe this conversation with the Attorney General was before the petition in this case was drafted. I intend, therefore, to examine the case without regarding the decision in that case as conclusive, and shall proceed to a review of the cases upon which the Attorney General so confidently relies.

The case of The People v. Bartow was a proceeding under the Act of the Legislature of New York, of 1818, against unlisenced banking. It enacted that it should not be lawful for any person, association of persons, or body corporate, from and after the first day of August, then next ensuing, to keep any office of deposit for the purpose of discounting promissory notes, or for carrying on any kind of banking business or operations, which incorporated banks are authorised by law to carry on, unless thereunto specially authorised by law ; and providing a forfeiture of one thousand dollars, for the violation of the law. The charging part in the declaration of a breach of the law was, that the defendant, not regarding the Act nor the provisions therein contained, afterwards, &c., to wit: on the 1st day of April, 1825, at, &c., did keep an office of deposit for the purpose of discounting promissory notes, he not being thereto specially authorized by law; whereby, &c. (6 Cowen, 290.) The objection taken to the charge was, that it did not allege that the defendant had contravened all the provisions of the Act, and that it did not specify what kind of banking business or operations it was the purpose to carry on. It was held to be a sufficient averment, and the Court said, that to keep an office of deposit for the purpose of discounting notes is a specific offence. It next forbid the carrying on of any kind of banking business. The latter may include but is certainly more extensive than the former. To allow the construction contended for by the defendant, would be to render the Statute a dead letter. The discounting of notes is undoubtedly the principal business of a banking institution. If in addition to this, it must be shown that the defendant has conducted other and further operations incident to banking, before he is liable to the penalty, the Act becomes nugatory and inoperative. On this ground it is only necessary for a party to confine himself strictly to the keeping of an office for discounting notes, the great evil intended to be remedied, and he is sure then not to be reached. He is excused, because he has not also conducted some of the minor operations of a bank, distinct from discounting notes. The Statute speaks a different language. It must, I think, be understood to attach whenever either of the prohibitions have been violated. This is the manifest construction, although the words, “ or either of them,” is omitted. I have given a pretty full statement of this case, because it has been supposed to sustain the petition in the case at bar. I will pass it for the present, but will notice it again, in discussing how far it is analogous to the question now before the Court.

The case of the Commonwealth v. Pray, (13 Mass. 359,) has been much relied on by the Attorney General. It was an indictment under the following Statute : “ That no person may “ presume to be a common victualler, inn-holder, taverner, or “ seller of wine, beer, ale, cider, brandy, rum, or any strong “ liquors, by retail, under a penalty of twenty pounds.” And the second clause provides that “ if any person shall, without “ licence, sell any spirituous liquors or any mixed liquors, part “ of which is spirituous, he shall incur a penalty of not less than “ forty shillings .nor more than six pounds.” I cite the Statute from the Judge’s opinion. The indictment is as follows : “ The “jurors, &c., present that Edward Pray, of Braintree, in the “ county of Norfolk, trader, on the thirtieth day of September, “ in the year of our Lord one thousand eigth hundred and thirty, “ and on divers other days between that day and the twentieth “ day of December next following, at Braintree aforesaid, did “ presume to be and was a common seller of wine, beer, ale, “ cider, brandy, rum and other stong liquors, by retail, in less “ quantities than twenty-eight gallons, and that delivered all at “ one time.” This indictment was held good, on objection being raised that it was defective in not specifying the particulars constituting the offence. The Judge says, “ The first offence “ consists in presuming to be a common retailer or common “ seller, &c., the second in actually selling. Although the first “ offence may not be completed without committing the second, “ yet the second may be without committing the first.” The Court, after laying down this as an exception to the general rule as to specifications, because it was the offence created by Statute, of being a common inn-holder, a common seller, &c., and the of-fence was sufficiently charged to prevent another conviction for the same offence, adds, “ Besides, the Court, according to mod- “ ern practice, in all cases of general allegations, take care that “ the defendant shall not be surprised, but that he shall season- “ ably be furnished with such specifications and particular “ statements, as may be necessary to enable him to prepare for “ his trial, and meet all the proof that may be brought against “him.”

The Attorney General refers us to a form of an indictment in Chitty, under the Statute 5th Eliza. Ch. 4, which enacts that it shall not be lawful for any person, other than such as then did lawfully use or exercise any art, mystery or manual occupation, to set up, occupy, use or exercise any craft, mystery or occupation, then used or occupied within the realm of England, except he should have been brought up therein seven years, &c., under a penalty, &c., for every month, &c. The indictment is as follows : “ did set up, occupy, use and exercise, and from “ thence continually afterwards, for a long space of time, to “ wit: the space of six whole months, and upwards, to wit: “ until &c., at &c., aforesaid, for his owm lucre and gain, did un- “ lawfully set up, occupy and exercise the art, mystery and “ manual occupation of a brewer, the same being an art, “ mystery and manual occupation used within England on the “ twelfth day of January, in the fifth year of the reign of Eliz- “ abeth.” The Statute is general, prohibiting the occupation or use of all trades, arts and mysteries, known at the passage of the Act as such, unless the'party charged had served a seven years’ apprenticeship. Very good policy, perhaps, at the time, and calculated to make better citizens; but Young America would regard it as putting on the straight jacket. The indictment charges the defendant with the exercise of the art of a brewer, the same being an art, mystery and manual occupation. The indictment would certainly have been more specific in the charging part, had it stated what kind of malt liquors were made and brewed, or at least what kind the prosecutor would rely on proving in support of his indictment; for it never can be supposed that the prosecution could be sustained, without proof that malt liquors of some sort were brewed for the space of time named in the Statute. We shall perhaps have occasion to return to this precedent of Mr. Chitty in examining the reason of admitting any exception to the rule that the indictment should specifically set forth the facts constituting the offence charged.

In treating of this subject Mr. Chitty says, “ For this purpose “ the charge must contain a certain description of the crime “ of which the defendant is accused, and a statement of the facts “ by which it is constituted, so as to identify the accusation, “ lest the Grand Jury should find a bill for one offence, and “ the defendant be put upon his trial in chief for another with- “ out any authority. These precautions are also necessary in “ order that the defendant may know what crime he is called “upon to answer. * * * * * They are also important in order “ that the defendant’s conviction or acquittal may insure his “ subsequent protection, should he again be questioned upon “ the same ground, and that he may be able to plead his previ- “ ous conviction or acquittal of the same offence in bar of any “ subsequent proceedings.” (1 Chitty, chap. 5, p. 169.) The humanity and good sense of these rules strongly recommend them to the favorable consideration of every jurist, in the administration of criminal jurisprudence. And although they may sometimes have been censured by Judges as merely technical, and too much calculated to favor the escape of the guilty, yet they have continued to receive the sanction of the most enlightened Jurists in our own country, and the recent tendency has been to enforce this rule more stringently, rather than to tolerate a relaxation. And it pervades Courts of civil as well as criminal jurisdiction, that each party to a suit should be clearly advised of the cause of action, and the particular grounds of defence.

The late lamented Chief Justice Gibson, in a case of conspiracy, says that “ the English Courts are beginning to regret “ the laxity of description that has been tolerated in these in- “ dictments for conspiracy; and policy requires that the Judges “ here as well as there should begin to retrace their steps, ti * ■* The counts before us are so uncertain and bald “ in circumstances as to have shed scarce a ray of light on the “charge which the defendants were required to meet.” (5 Barr, Penn. R. 65.) And the same learned Judge further adds, upon the subject of the specifications in a charge: “ It “ may be said that the form of a criminal purpose meditated, “ but not put in act, can seldom be described ; but it can be as “ readily laid as proved. Precision in the description of the “ offence is of the last importance to the innocent, for it is that “ which marks the limits of the accusation and fixes the proof “ of it.” (Ib.) This opinion is the more valuable, because it shows the true ground why it is required, and leaves it not to the caprice of the Judge in making exceptions. It is put upon the well established doctrine that the allegata and probata must agree. And again, the same Court, in the case of Duck v. The Chief Burgess, (7 Watts, 182,) per curia: “ The plain- “ tiff declared generally, in the words of the law, that the de- “ fendant had annoyed the public with a collection of ‘ stale, “ putrid, or stinking fat, grease or other matter/ without more “ circumstance. But it is not sufficient in an indictment or “ popular action, which this resembles, to lay the offence in the “ very words of the Statute, unless they expressly serve to al- “ lege the very fact with all necessary additions, without a “ grain of uncertainty or ambiguity. - * * * The special “ circumstances necessary to individuate the offence, must be “ stated distributively, and not disjunctively; for to say the defendant did the act or caused it to be done, is to say he '£ committed one of two offences, without charging him partic- “ ularly with either.” (Hawk. b. 2, Ch. 25, Sec. 58.)

Mr. Chitty says, in enforcing the necessity of setting out the facts constituting the offence : “ And where the circumstances,- ■“ are constituent parts of the offence they must be set out, but “ where the crime exists without them, they may be alleged in “ aggravation, but are not absolutely required.” (Ch. 5, p. 227.) The necessity of these specifications or statements of fact is strongly shown by Senator Spencer in 9 Cowen, 592 and 593. The Senator, in commenting upon the dangerous consequences of permitting a man to be tried upon a loose, general charge of an offence, says : “ Such indictments as that now un- ■“ der consideration are, in my judgment, repugnant to the great <£ features of the Criminal Law. They open the way to general “ and indefinite charges. They surprise the defendant. They “ afford no means of determining whether they were legally ££ found. They deprive the accused of the right of reviewing “ them. And they leave him at the mercy of a public prosecu- <£ tor.” (See also Tennessee v. Field, 1 Martin & Yerger, 137.)

It is admitted, however, that where general pleading is allowed, it is an exception. How is this doctrine of allowing an exception to be regulated ? It surely is not to be left to the opinion of the prosecutor, as a mere matter of convenience, the rule at all times to yield to his convenience. Mr. Starkie, in his Criminal Law, lays down the doctrine thus : “ The only “ instances in which general pleading seems to be allowable, <£ are exceptions, from the necessity of the case, where the of- ■“ fence is made up of a number of minute acts, which cannot be ■“ enumerated upon the record without great prolixity and the “ danger of variance.” (1 Starkie, Crim. Law, p. 75, 76.) And the illustration he gives is, an indictment against a common scold, where it is only necessary to avar that she is a common scold, and in an indictment for barratry it may be averred generally that the defendant is a common barrator. A note refers to Hawk. 2, Ch. 25, Sec. 59, for this. “ But it is usual for the prosecutor (before the trial) to give the defendant a “ written note of the particulars intended to be relied upon.” And it seems that in New York, even, when an exception is made to the general rule, in the excepted case of common barrators, the prosecutor is required before trial to furnish the defendant a bill of particulars of the instances of barratry intended to be relied on upon the trial. Where this is done, it can hardly be said to be any exception to the general rule. It is only changing the statement or specification of the facts, from the indictment, information or petition, to the bill of particulars. (9 Cowen, cited before.) And in all cases, except indictments, the rights and privileges of the accused would be as well secured, as if the facts to be relied on were stated in the charge of the offence.

The bill of particulars, as a substitute for the specification in an indictment, ought not to be tolerated in any country where the rights of the accused are at all regarded; because, this bill of particulars being furnished after the bill found, what assurance has the accused that he may not be called upon, on the trial in chief, to answer a different ground of offence from the one the Grand Jury had passed upon, and on which their bill was found ?

But, suppose the cases relied on by the Attorney General, and before cited, as forming exceptions to the general rule, are to be tested by Mr. Starkie’s rule, that exceptions can only be allowed from necessity arising from the difficulty of putting the circumstances on the record. The case of Bartow, cited before from 6 Cowen, was a case where there was no necessity of making the exception. It would have been easy for the pleader to have stated the circumstances on which he relied for making out the offence, in its description in the indictment. He would have been under no obligation to state all of the circumstances, or all the constituents of the charge of banking, but only so much or so many of them as he would rely on upon the trial. It would have been as easy to have done this in the indictment as it was to make them out in the bill of particulars. In that case, however, the exception taken was, that the charge did not state that the defendant had used and exercised all the privileges of banking. This surely was not necessary, but only such as the prosecutor relied on. In the case of Pray v. The Commonwealth, (13 Pick.) before noticed, there would have been no more difficulty in averring the particular facts constituting the offence charged, than in making out a bill of particulars, which the Court said in its opinion would always be required to be given, when the charge was a general one. The precedent of an indictment under the 5 Elizabeth, for practicing, using and occupying the art of a brewer, without having served thereto a legal apprenticeship, certainly was not a case where the prosecutor, from any necessity, would be justified in making the charge general. He could have specified in his indictment in what particular the defendant exercised the occupation of brewer, on which he relied to support the charge; and if various malt liquors were made by him, the specification and proof that he made those specified, for six whole months, would have been sufficient; and no reason is perceived why it should not have been required, instead of the bill of particulars, furnished after the bill was found by the Grand Jury, incurring a risk of a conviction for a different offence from the one on which the bill had been found. And if this precedent is to be tried by Mr. Starkie’s rule, or even by Mr. Chitty himself, it cannot stand.

Does the case at bar present such difficulties in putting the ingredients constituting the offence, on the record, as to justify the prosecutor in making a general charge in his petition ? The charge is, that the said defendants, “at the office of the said illegal bank, use and exercise banking and discounting privileges.” Now it cannot be questioned; but the prosecutor will have to prove this charge, by the fact of the exercise of banking and discounting privileges. He would not have to prove the whole range of banking and discounting privileges, but some one of them at least must be proven. Then why not allege in his petition such fact, on which he relied to prove the offence charged, and advise the accused what act or fact he would be required to defend himself against. But it may be said, that according to some of the authorities cited as exceptions to the general rule, it is said that these facts must be proven, but need not be averred. Shall we follow such authorities, so unreasonable, so well calculated to surprise the accused, and to subject him to being twice tried and punished for the same offence, (because if the proof is not confined to the allegation it will be difficult to prove a former acquital or conviction for the same offence,) or shall we not rather with Chief Justice Gibson regard “ the “ description of the offence as of the last importance to the in- “ nocent, for it is that which marks the limits of the accusation “ and fixes the proof of it”? I believe that the rule of furnishing a bill of particulars, instead of stating those particulars in the charge, was introduced with the first departure from the rule laid down in all the books to be the general one. We have seen that in the cases referred to as exceptions, the prosecutor was required to furnish a bill of particulars of the grounds upon which he relied for a conviction. As we have no such practice in our Courts, nor do we feel authorized to make such a rule, it would seem to me that we should rigidly enforce the rule requiring a particular specification of the of-fence. It is true that some offences at Common Law can acquire no more definite meaning from specification than common understanding has given to the offence, by which it is in law designated. Such is a baudy house, and so would be the playing at farro, the indictment need not describe the game; but whenever it can be made better understood, and serve to notify the defendant what he had to defend against, and likewise afford an opportunity of defending himself against a second suit for the same cause, it should be specified in the indictment, petition, declaration or by whatever way the offence is sought to be established against the defendant.

On the ground, then, that the charge is general, where it might have been made specific, by averring in what particular the defendants used banking and discounting privileges, I believe that the petition was defective, and substantially so ; and that the judgment should be affirmed.

But if it was admitted that the charge, general as it is, would have been good in analogy to the cases relied on by the Attorney General, if our Statute had stopped with the particular of-fence charged, yet I feel very confident that in reference to the fourth Section of the Statute, a general charge would not have been sufficient. The truth of this proposition, I believe, cannot be successfully assailed, that where a Statute creates an offence, composed of different ingredients, and the same Statute makes each of those constituents a distinct offence, it is necessary, in defining and making out the offence in the charge, that the particular constituent or constituents relied on should be specified with accuracy, not only to enable the defendant to know what he is charged with, but to enable him to plead it in another suit, if one should be brought for the same offence, either as former conviction or former acquittal, as the case may be. The term common barrator embraces several constituents. Suppose an Act of the Legislature should make some one or more of these constituents a distinct offence. Could it be doubted that after the passage of such Act, it would be required, in an indictment for common barratry, to specify in what particular act of barratry the offence charged consisted. So, if the making any particular kind of malt liquor had been made a distinct offence, under the Statute under which the precedent of an indictment against a brewer was found by Mr. Chitty. So long as the components of a brewer were none of them made a distinct offence, the precedent supported by the bill of particulars, might be regarded, under the authority cited, as sufficient; but as soon as one of them became a distinct of-fence, the necessity would follow of specifying the particular grounds constituting the offence, on which a conviction was sought, as any one of several kinds of malt liquor would constitute the maker a brewer. And so, as the fourth Section of our Statute makes so many distinct acts of banking and discounting distinct and separate offences, it is essential to the security of the accused, both as regards a fair trial, by notice of what he has to answer, and also to prevent- another recovery for the very same act constituting the offence charged, that the grounds constituting the offence should be specified.

The keeping an office, without exercising any banking or discounting privilege, would not constitute the offence. And in order to convict, it will be necessary to prove the fact of the exercising of some one of the multifarious acts of banking. It was admitted in the case from 6 Cowen, that this would have to be proven. Suppose, the charge being general, the prosecutor should offer in evidence in support of this charge the issuance of a note, or the discounting a bill, and on this testimony procure a conviction. He would then offer the issuance of the same note, or the same bill discounted, as evidence to support a charge in another prosecution for the distinct offence of issuing a note or discounting a bill, and should he be convicted, it would be clearly a conviction twice for the same act. There is no way of escaping the result, unless the position be assumed, that on the first conviction it was not for issuing the note, or discounting the bill, but for keeping an office. This is absurd, because the mere keeping a suitable office for one month would not constitute the offence, but the use of banking and discounting privileges would have to be charged and proven to complete the offence.

The Attorney General has urged the difficulty of being more specific. No difficulty not amounting to absolute inability, could be a sufficient excuse. I see no such difficulty as is suggested, and certainly it does not amount to inability to state the facts constituting the offence ; and in the language of the late Chief Justice Gibson, “ it is not more difficult to specify the facts than it will be to prove them.”

I am clearly of the opinion that the judgment ought to be affirmed, and it is the opinion of a majority of the Court that it be affirmed. This opinion will apply to and govern the other case between the same parties, and also the case of The State v. R. & D. G. Mills, and the same judgment will be entered in each of them.

Judgment affirmed.

Wheeler, J.

There is, and can be no difference of opinion as to the general principles of the law applicable to this case. The only difference is, in the application of those principles to the case before the Court. Circumstanced as I am, in reference to a previous decision of this Court, (The State v. Williams, 8 Tex. R. 265,) in which I concurred at the time, it is matter of regret, that I cannot now concur in the application which is made of the law to the present case.

The Statute is, in one respect, very peculiarly framed. Ordinarily, we would not think it necessary to look to the first and last Sections of an Act, consisting of several Sections, for the constituents and definition of an offence created by it. Yet such is the case in reference to the offence created by this Statute. It was the circumstance of looking to the description of the offence, as created by the first, and not attending sufficiently to its constituents, as defined in the last Section of the Act, which led me into what, I am now convinced, was an error, when the former case was decided. That Section makes the use, or exercise of banking or discounting privileges, by any corporation, company or association of individuals, for the period of one month, and the act of issuing a bill, check or promissory note, or other paper to circulate as money, by any corporation, company, or association of individuals, separate and distinct offences. In the one case it is the practice, in the other it is the single act, which is made, by the law, to constitute the offence. The present suit is for the former. The petition contains the statutory description of the offence ; and it avers every circumstance, which is made to constitute the definition of the offence by the Act, so as to bring the defendants precisely within it. How an offence, which is made to consist in the “ use,” or “ exercise” of banking and discounting privileges, for the period of one month, could be otherwise more specifically charged, or identified with a greater certainty of description, with any reasonable expectation of obtaining proofs to correspond with the description, so as ever to ensure a conviction, I am unable to perceive. There is, doubtless, great propriety in the rule, '(and I would always insist upon inflexible adherence to it,) that every offence must be described, in charging it, with the greatest speciality, particularity and certainty, which the nature of the case will reasonably admit of; and when it is created by Statute, all the circumstances which are made to constitute the definition of the offence in the Act, must be distintly averred, so as to bring the defendant precisely within it. And this is what, it seems to me, lias been done in this instance. How else the petition could describe the practice, custom, or habit, the continued “ use” of “ privileges,” for the period of a month, which is made to constitute the of-fence by the Statute, so as that the averments would be susceptible of proof, I cannot perceive. If the description of the offence which has been employed be not sufficient, then, with all the lights I have been enabled to derive from the argument of counsel for the appellees, I must admit I could not undertake to furnish a precedent for the description of this offence, which I would recommend, and could affirm would be sufficient. And unless I could do this, I must hesitate to pronounce this petition insufficient. Before I condemn the precedent which has been furnished on behalf of the State, I desire to see how a better may be framed; and to be able to point the Attorney General to the sources, the “ fountains rather than the rivulets,” of the law, where may be found, in its precedents and adjudications, the safe and sure principles which shall guide him in his future endeavors to obey the legislative mandate. This I must do, holding myself equally bound to obey and administer the law, “ as it is written;” unless I were prepared to hold, that the Statute itself is nugatory, and cannot be enforced. For if a greater certainty of description is required, than that which has been employed in this instance, it appears to me evident, that the law cannot be enforced. And to require it, must be, it seems to me, virtually to repeal the Statute. That such will be its practical effect in this instance, is not, I presume, a.doubtful question. Practically and virtually, therefore, I consider the real question to be, whether this provision of the law shall be enforced, or rendered nugatory by judicial construction. And the learning, investigation, earnestness and zeal, which counsel for the appellees have brought into the discussion of this ostensibly mere question of pleading, depending for its decision upon principles too obvious and familiar to require, or, I might almost say, to admit of discussion, admonish me, that it is so considered by them.

If the execution of the law is to be defeated, as it seems to me it must be, if this mode of describing and charging the of-fence is to be held not sufficient, I would prefer so to pronounce directly ; and to place it upon the higher ground, of a want of power in the Legislature, or of certainty in the law ; holding, either that the Leguislature had not the power to enact a law to punish particular acts; and also, the practice which the commission of a series of those acts contitutes ; thus, it may be said, punishing a man twice for the same offence ; or, that the Legislature have undertaken to make that an offence, which is in itself so vague and indefinable, as to be incapable of being so described and identified, as to apprise the accused of the nature of the accusation preferred against him ; thereby endangering the preservation of a great principle of natural right, affirmed by the Bill of Rights; which forbids that any one shall be twice punished for the same offence ; and implies that the accused shall be apprised of the nature of the accusation preferred against him, having the right to be heard by himself or counsel, to meet and repel it. But I know of no precedent, or adjudication, which I could invoke, to warrant me in pronouncing against the validity and obligatory force of the law, upon either of these grounds. On the contrary, it appears from the citations in the briefs of counsel, and from the numerous cases and references to be found in the books upon the criminal law, and which it would be an unprofitable consumption of time here to cite, to have been, from time immemorial, the settled and undoubted law, that in cases analogous to the present, both the practice and the acts which go to constitute the practice, may be separately punished ; and that the one is not dispunishable because the other is punishable. Such are some of the instances given by the learned Judge who delivered the opinion of the Court in one of the cases cited by the Attorney General, (The Commonwealth v. Pray, 13 Pick. R. 362,) as the keeping of a gaming house, and other instances given, of which the Court say, “ The several acts may be indicted and “ punished separately ; but the keeping of the house is a dis- “ tinct offence, and as such, liable to punishment.” And it will readily be perceived, by attending to the constituents of of-fences of this character, instanced in the books, that, while in. many, perhaps most of them, the general offence, or practice,, and the acts which go to constitute it, are, in their nature, distinct, and very different offences ; and in some instances, the acts, taken severally, are not offences, or punishable ; yet in others, the general offence is made up of, and constituted by a series of acts, severally punishable. And in respect to all the instances, where the offence is the practice which consists of a series of acts, it is in general, from the very necessity of the case, held to be sufficient, in the indictment, to describe the practice; without attempting to describe specially the acts which constitute it; and for the reason, that a description of the practice is all the certainty of description, which the nature of the case will reasonably admit of. A greater degree of certainty than this, is never required in any case. For that would be to prevent the enforcing of the laws, and render of-fences dispunishable. “ The law does nothing vainly; commands nothing vainly; it intends nothing that is impossible.” (12 Co. 89.) Nor does it require, or intend anything that is not reasonable and convenient. And it therefore, never requires, in an indictment for any offence, whether known to the Common Law or created by Statute, and of whatever nature, a •greater degree of certainty than the nature of the case will reasonably and conveniently admit of. The greatest degree of -certainty practicable, must always be sufficient. And such, I think, is the certainty attained in this instance. If it be admissible, in an indictment for keeping a gaming house, or a disorderly house, or a house of ill fame, to describe the offence in ■general terms, because the acts which constitute it “ cannot be -enumerated upon the record without great prolixity, and the danger of varianceand a greater degree of certainty, therefore, in the very nature of the case, cannot reasonably be acquired; for how much better a reason should it be held admissible, in describing the offence of using and exercising banking and discounting privileges for one month ; where the particular acts which constitute the offence, extending through such a period of time, cannot be enumerated upon the record without intolerable prolixity, and the certainty, not to say the danger of variance between the allegations and the proofs, should such a thing he attempted; and where to require it, would be, not only to require that which is not reasonably and conveniently practicable, but which is morally impossible, and must, of necessity, defeat the manifest intention of the law. The case of The People v. Bartow, (6 Cowen, R. 290, and other similar •cases doubtless may be found,) is, I think, an authority in point; •and which, as a precedent, and in principle, fully sustains the present case. And I apprehend a well considered case, upon a ■similar Statute, will not be found, where it has ever been held, that a statement of all the circumstances which are made to ■constitute the definition of the offence in the Statute, is not legally sufficient.

I do not think there is any reason to apprehend, that the description of the offence in this case, will not answer the purpose of apprising the defendants of the precise offence with which they are charged. The law may be considered harsh, severe or impolitic in its operation. But the policy of its enactment was for the consideration of the Legislature, not for ¡the Courts, whose province it is to administer, not to make or unmake laws. With the policy of the law we have nothing to do ; but only with its administration. And I know of no precedent or authority, which, in the view I take oí the case, would warrant me in holding the petition insufficient, tested by the rules which have hitherto been applied by the Courts in similar cases.