Rawson v. State

19 Conn. 292

• Court: Supreme Court of Connecticut
• Decided: July 15, 1848
• Status: Published

Opinion

Church, Ch. J.

This complaint is founded upon the statute of 1846, “ regulating the sale of Wines and Spiritous Liquors ■’’ and was presented, by a grand-juror of the town of Norwich, to a justice of the peace, who had jurisdiction of the offence. Several exceptions have been taken to the complaint. And first, that the time of committing the offence is not alleged, with legal certainty, nor in words at full length, but in figures — ■“ On or about the 24th day of May, 1847.”

The criminal code of this state is clear in its definition of crimes, mild in its punishments, and careful in its provisions for securing full and impartial trials. It is a false humanity which would protect offenders, either by stifling detection and prosecution, or by affording facilities to escape conviction, by unnecessary and artificial technicalities in the administration of the law.

In England, from whence we have derived much of our law regulating the forms of criminal procedure, an undue severity has formerly characterized all penalties; and little regard was paid in legal enactments to the relative gradation of crimes and properly apportioned punishments. Almost all crimes were felonies, and almost all punishments capital ! Therefore, it was, that, in favorem vita, the greater humanity of the judiciary required the utmost strictness of averment and description in indictments; and the courts were well enough disposed to provide this shield against some of the consequences of a severe code. Lord El ale says, that “ the strictness required in indictments is great, because life is in danger.” “ Therefore, many nice and slender exceptions have been, of latter ages, allowed ; and these (indictments) have been, with too much facility, quashed and reversed.” 2 Hale’s P. C. ch. 24. p. 168. 1 Chitt. Cr. L. 170. We are at no loss, therefore, to determine, why the English courts, as well before the statutes of 4 and 6 of Geo. 2., as since, have said, that figures to express numbers were not allowable in indictments.” The doctrine had its origin in prosecutions for capital offences, and continued to be applied, after the severity of punishments had become mitigated. And yet, at the same time, while figures were rejected as expressive of numbers, Roman numerals were permitted. 2 Hale’s P. C. 168. 2 Burn’s Just. 449. 1 Chitt. Cr. L. 176.

Under our system of laws, we know of no general rule more sound and sensible, as applicable to certainty in criminal pleadings, than the one laid down by Ch. J. DeGrey, in delivering the unanimous opinion of all the judges in the House of Lords, in the case of The King v. Horne, Cowp. 672. 682. “ But though the law requires certainty, we have no precise idea of the signification of the word, which is as indefinite in itself as any word that can be used.” “ The charge must contain such a description of the crime, that the defendant may know what crime it is, which he is called upon to answer ; that the jury may appear to be warranted in their conclusion of guilty or not guilty, upon the premises delivered to them ; and that the court may see such a definite crime, that they may apply the punishment which the law prescribes.” And furthermore, in the manner of stating the offence, every fact should be averred, which is necessary to constitute the crime intended to be charged. And in the absence of any such statute provisions as are found in 4 and 6 Geo. 2., by which all indictments must be in words at full length, we think the foregoing rules as safe for the accused, as an enlightened administration of public justice demands.

Words at full length afford no greater certainty than figures, in expressing dates. Indeed, for such a purpose, figures seem to be the most appropriate ; and are so used in all civil proceedings and documents, whether legal or mercantile, in which the greatest accuracy is demanded. We find them in deeds, surveys, contracts and all commercial papers. We suppose the use of figures, in drawing up indictments, in this state, has been frequent, though perhaps not general ; and no good reason suggests itself to us why, as a matter of positive law» they should be excluded. They have not been excluded in our sister states. State v. Hodgeden, 3 Verm. R. 481. Bunce v. The State, 5 Yerger, 186. The State v. Raiford, 7 Porter, 101. The State v. Hadock, 2 Hawks, 354.

We have spoken only of indictments, because the English law, which has been alone relied upon, in support of this objection, applies only to them, and perhaps to informations made by the attorney general. But we are not informed, that in proceedings before justices of the peace and police magistrates, either in England or elsewhere, for the violation of statute regulations merely, the same precision of form has ever been required or observed, as has been generally adopted in indictments and informations. A complaint by a town grand-juror, a prosecuting officer unknown to the common law, has not been regarded by us, in the same light as an indictment or an information filed by the state’s attorney; and , ' although such a proceeding ought to be reasonably certain- and definite in its specifications of crimes, yet we do not see that the cause of truth and justice will be promoted, by requiring here technical niceties of no practical importance, which the force of precedent alone has introduced into higher and more solemn modes of prosecution. Goddard v. The State, 12 Conn. R. 448. Whiting v. The State, 14 Conn. R. 488. Barth v. The State, 18 Conn. R. 432.

Another branch of this objection, viz., that the time of committing the offence is not certainly averred, by the words on or about, we consider answered, by the remarks already made. The two latter words in this averment, have no meaning in this place, and are surplusage. The course of the evidence and trial could not be at all affected by them.

2. It is again objected, that two distinct offences are charged in one count, in this complaint ; and if this be so, it is defective ; for the accused is entitled to know definitely, by the complaint, what crime is laid to his charge, that he may be prepared to meet that, and that alone. The second section of the statute, upon which these proceedings are founded, enacts, “ If any person or persons, except tavern-ers, by agent or otherwise, shall keep any house, store, shop, or other place, for the purpose of selling any wine or spiritous liquors to be drank thereat, &c., every such person shall, on conviction thereof, forfeit and pay, for every such offence, a fine of thirty dollars.” The objection supposes the defendant tó be charged with keeping a house, and also a store, and also a shop, as three distinct and separate places, for the purpose of selling wine and spiritous liquors ; the keeping of each of which constitutes a distinct offence. We do not think that the language of the complaint, understood in its ordinary import, warrants this inference. The grand-juror evidently used the words house, store and shop, as synonymous, and as defining but one place. “ A certain house, store and shop,” equivalent to saying one certain house, &c., “ to be drank thereat,” viz., at that certain place.. This language is in the singular throughout, with no allusion to more buildings than one. And he was well warranted in so understanding and using these words, which, in eomtnon parlance, and especially in reference to their being houses used for buying > and selling, are generally understood to mean the same thing ; -and so they have been recently considered, by this court, in the case of The State v. Barth, 18 Conn. R. 432. It cannot be intended, that the pleader would attempt to set out three separate offences, in language so general and sweeping as this. Perhaps a more close and grammatical criticism of this language might give countenance to the defendant’s construction of it, but only at the expense of doing violence to its more natural import.

3. It is finally contended, that no offence is alleged in this complaint; because it is not averred, that the defendant kept the house, store and shop, by his agent; and it is claimed, that, if he kept it himself, personally, and not by agent, there has been no violation of the law. This objection is certainly a bold one, and will require strong and decisive authorities to sustain it. It is suggested, by the peculiar language of the statute, which provides, that if any person or persons, except taverners, “ by agent or otherwise,” shall keep any house, &c. Here it is insisted, that the word otherwise being used in this connexion in a penal statute, has no meaning, and is to be rejected in its construction. In support of this claim, we are referred to the elementary rule, that penal statutes are to be construed strictly, and to the cases given by Blackstone, to show its application. It is said, that under the statute of I Edw. 6. against stealing horses, a conviction for stealing only one horse, could not be sustained. And also, that the statute of 14 Geo. 2., by which the stealing of sheep, or other cattle, was made felony, was confined, in its construction, to sheep alone ; the words other cattle being considered too loose to create a capital offence. And Judge Swift, borrowing from this doctrine, but without giving any authority, says, in the 1st volume of his System,p. 50. “ that the statute which renders it a capital crime for a woman to conceal the death of a bastard child, either by drowning or secret burying, or any other way, must be confined to the only methods of concealment expressed by the statute ; and the words “ any other way” are void for uncertainty. Without intending to detract from the proper authority of these opinions, it is not improper to suggest, that since the case referred to under the statute of 1 Edw. 6. it has been holden, that under a statute making it felony to steal any hank notes, the penalty is incurred by

stealing only one note. HasseVs case, Leach’s Cr. Law, ]. 1 lila. Com. 88. Chitt. notes. And the other statutes and cases referred to, by Blackstone and Swift, were severely penal, and by which a death penalty was incurred, for very inferior offences. Such cases do not seem to be parallel with the present, nor to furnish a proper rule for the construction of a statute of a very different character.

All statutes, whether remedial or penal, should be construed according to the apparent intention of the legislature, to be gathered from the language used, connected with the subject of legislation, and so that the entire language shall have effect, if it can, without defeating the obvious design and purpose of the law. And in doing this, the application of common sense to the language, is not to be excluded. Opinion of the Judges. 22 Pick. 571. Commonwealth v. Loring, 8 Pick. 370. Read v. Davis, Id. 514. United States v. Wiltberger, 5 Wheat. 76.

This rule is not inconsistent with the principle, that penal statutes are to be construed strictly. By this is meant only, that they are not to be so extended, by implication, beyond the legitimate import of the words used in them, as to embrace cases or acts not clearly described by such words, and so as to bring them within the prohibition or penalty of such statutes. United States v. Gooding, 12 Wheat. 460. The Enterprise, Paine, 32. 4 Mass. 471. Daggett v. The State, 4 Conn. R. 61. United States v. Sheldon, 2 Wheat. 119. And there can be no rule which requires courts so to understand a penal law, as to involve an absurdity, or frustrate the evident design of the law-giver. The American Fur Company v. The United States, 2 Peters, 358. But this, it seems to us, we are now required, by this defendant, to do. No man can read this statute, without learning from its entire perusal, that the controuling purpose of the legislature was, to suppress tipling-houses, under whatever pretence or name established ; and thus to prevent the facilities to intemperate and ruinous dram-drinking. To reject the word otherwise, from the law, and thus to legalize the evil which it was the object of the statute to prevent, if perpetrated in person, and not by agent, would be, not only absurd, but it would involve a judicial repeal of an important part of the law itself. This word was not incautiously introduced into the statute ; it was necessary to give full expression "to the intent of the legislature. And the question is not so much now, whether this statute shall be construed strictly, as whether we shall lend our aid to the violators of the law, by disregarding one of its most necessary and efficient provisions.

We think the objections to the judgment of the superior court have not been sustained ; and that there is no error in that judgment.

The other Judges were of the same opinion.

Judgment affirmed.