Morse v. State

6 Conn. 9

• Court: Supreme Court of Connecticut
• Decided: July 15, 1825
• Status: Published

Opinion

Hosmer, Ch. J.

To bring one, who has given credit to a person under age, within the purview of the act on which the prosecution is founded, an officer or officers of college must have been authorized “by the government thereof,” with capacity to give or refuse consent to the contract of a minor. The legislature never intended to inhibit the students of Yale-College, being minors, from obtaining credit, in any event; but to prevent their doing it in violation of rules established by the government of that institution.

It is not alleged in the information, that such an officer or officers as before have been alluded to, had been appointed, or existed. Although, when a statute contains provisos and exceptions in distinct clauses, it is not necessary to shew, in an indictment, that the defendant is not within the exceptions, or to negative the provisos; yet, if the exceptions themselves appear in the enacting clause, it is requisite to negative them, in order that the description of the crime may, in all respects, correspond with the statute, 1 Chitt. Cr. L. 233. Rex v. Jarvis, 1 East, 643, 647. in note. 1 East’s P. C. 166. Soper v. Harvard College, 1 Pick. 177. Commonwealth v. Maxwell, 2 Pick: 139. And what is directly to the purpose, it is a general rule, that an indictment or information must state all the facts necessary to bring the defendant precisely within the law. 1 Chitt. Cr. L. 231. One indispensible fact is not averred ; and for this omission, the declaration, undoubtedly, is insufficient.

Van Zandt, although not matriculated, was a student of Yale-College, within the intendment of the law. He was under the government of the authority presiding over this institution, and required the same controul and protection, as if he had been entitled to the highest privileges.

The testimony of Oaks and others, I am inclined to think, was inadmissible. It was opinion, entirely abstracted from fact. Had the witnesses testified to the facts Indicative of Van Zandt’s age, and accompanied them with their belief or opinion, I should consider the testimony competent.

From the motion, it is fairly to be inferred, that no credit was given to Van Zandt, by the defendant; but by Northam, his bar-keeper, only, without the knowledge or consent of Morse, and against his express directions. In the performance of this act, Northam was not the defendant’s agent. He was not authorized to give the credit, either expressly, or in the usual course of his business ; but was prohibited from doing it. Notwithstanding this, which the court below impliedly admitted, the jury were charged, that if the defendant subsequently assented to the acts of Northam, he ratified them, and made them his own. This was was an unquestionable error. In the law of contracts, a posteriour recognition, in many cases, is equivalent to a precedent command ; but it is not so in respect of crimes. The defendant is responsible for his own acts, and for the acts of others done by his express or implied command, but to crimes the maxim omnis ratihahitio retrotrahitur et mandato equiparatur, is inapplicable.

In cases admitting of accessories, a subsequent assent merely, would not render a person an accessory.

Peters, J. dissented as to the insufficiency of the information, and as to the incorrectness of the charge. Bristol, J. concurred with the Chief Justice. Brainard, J. was absent.

Judgment to be reversed