Thе prisoner was convicted under § 15 of the new liquor law, for selling without license ; and from the sen tence of the police court she appealed. She was then ordered to recоgnize to prosecute her appeal to the next court of common pleas, аnd abide the final sentence of that court. She is brought here on a writ of habeas corpus, оn the ground that, by § 32 of the same statute, she should have been committed differently, namely, to abide thе sentence of the court appealed from.
This is a penal statute, and must be construed strictly. We cannot know what the legislature meant, except so far as we ascertain it frоm the language of the statute itself. The provision
By the first clause of this section, a right to appeal is given, in clear and distinct terms; and this is necessary, in order to satisfy the twelfth article of the Declaration of Rights, which secures to every one, charged with a crime, the right of trial by jury. Justices of the peace and police courts do not furnish a jury, by whom a trial can be had. But it has always been held, that if there is an unobstructed and unclogged right of appeal to a court in which such trial can be obtained, that article of the Declaration of Rights is not infringed upon. This right of appeal is plainly given by the first part of § 32. But it is urged that it is trammelled and clogged by the latter clause of the section, and that the appeal does not take effect, as such, until the sureties requirеd by the same clause are furnished; and the difficulty arises upon the construction of that clausе.
It provides that the appellant shall be committed to abide the sentence of “ said justice or court.” If the words “ justice or ” had been left out, there would be no trouble, and the word “ cоurt ” might be construed to mean the court appealed to. But we cannot thus strike out those wоrds ; we think it plainly refers to the court appealed from. Now it is argued that it was the intention of the legislature, that the party committed should be committed to abide the sentence of the сourt appealed from, in order that, until giving bonds, he may be working out the sentence of the cоurt, and at all times have a choice either to work out the sentence or to find sureties; аnd that the portion of the sentence thus worked out should not be undergone again : but
It was contended, that if the last clause of § 32 was stricken out as insensible and void, there would be no provision for holding the appellant, and in that case the party must go at large, and the remedy would be, when the aрpeal was entered by the Commonwealth, to bring the appellant in by copias for sentence; but this would involve the inconsistency, that a person would be at the same time suffering imprisonment in satisfaction of a judgment, which had been vacated by an appeal, and could only be enforced after a trial by jury. We cannot presume that this was the intention of the legislature.
But there is another ground, that is perfectly consistent with the statute and the ordinary rules of construction. We admit to their full extent the arguments of the petitioner’s counsel, that the last clause of this sеction is wholly repugnant, inconsistent, unconstitutional and void. The question then arises, what is to be the rеsult ? If void, the statute is to be construed as if this clause were not there ; and although it is contended that all other laws for the commitment of appellants are repealed by the last seсtion of the new liquor law, we think that argument cannot be sustained, for the reason that the clause, being entirely void, has no force, not even to repeal previous statutes inconsistent with its рrovisions.
This leaves the Rev. Sts. c. 138, § 1, in full force, and the commitment, being in accordance with that section, is valid, though ‘t would be wholly unsupported by § 32 of St. 1855, c. 215.
Prisoner remanded.