Smith v. State , 19 Conn. 493 ( 1849 )

Eulsworth, J.

We have no doubt on any of the questions made in this case, except the one arising on the sufficiency of the 4th count of the information. Before, however, we express our views on that point, we will, in a few words, dispose of the others.

It was certainly a bold step of the counsel for the accused, to move that a cause should be stricken from the docket, where the record and proceedings were regular and sufficient on their face ; and more so, where judgment had been rendered in chief, and an appeal taken to the higher court for another trial. It was quite too late, and altogether irregular, to start the objection, that the grand-juror, who signed the complaint, had not been legally appointed. If well founded, the objection was waived, by appearing and pleading to the merits below, or else endless confusion will ensue in pleadings.

There would have been more propriety in the motion, if the record had shown a want of jurisdiction ; but this did not appear. We know of no practice, and we should be sorry to sanction one, of erasing from the docket, a cause which is regular on its face, and, as such, within the proper jurisdiction of the court. Such defect as the one supposed in this case, should be brought to the notice of the court, by a plea to the jurisdiction, or in abatement, and properly put upon the record, in a preliminary stage of the trial.

For the same reason, the county court did right in rejecting a plea in abatement. It was too late.

We do not say, that the supposed defect, if true, and pleaded in season, would avail the accused. The grand-juror was chosen dc facto, and acted colore officii. And no principle of law is better settled, than, that public officers de facto, acting colore officii, are held to be as well qualified to act, while they remain in office, as if legally appointed duly qualified. In the matter of Walker, 3 Barb. Sup. Ct. 169.

Nor did the county court err, in admitting evidence of particular instances of Root’s buying and drinking liquor to excess, and becoming intoxicated, on other occasions than the one mentioned in the complaint. This evidence not only conduced to prove, that Root was a common drunkard, but it was the best kind of evidence to establish the fact.

Nor did the county court err, in rejecting evidence offered by the accused, under the general issue, to prove, that Beebe was not a public officer de jure, but only de facto. The reasons have just been assigned.

There is one objection remaining, and that, as we have already intimated, is fatal to the prosecution: we mean the defect in the 4th count of the information. We believe that an important principle of law is involved in this question ; and that the precedents are too numerous, though not always satisfactory, to allow us to doubt what is our duty. We would remark, that courts in this country, and especially in smaller offences, as prosecutions before justices of the peace, have somewhat relaxed the rigor of the ancient precedents in England. In that country, anciently, most offences were felonies, punishable with death ; and hence there grew up a system of great technical strictness. Judges, in order to mitigate the administration of inhuman laws, resorted to subtle and trivial distinctions, which, at this day, are of little importance, and but too often used, to rescue the guilty from merited punishment. But these precedents have now made the law, both there and here, and have established rales of proceedings, which we are not at liberty to reject; and the legislature only can interpose to repeal or modify them, if they ought not longer to remain.

It is by no means certain, that the legislature, when they enacted, “if any person should sell wine, spiritous liquor, or other intoxicating beverage, to a common drunkard,” &c., liad in view more than one offence ;• it is probable they had not; and that they meant only the offence of selling intoxicating liquor to such persons. But then we must take the statute as we find it. We have no doubt there is, in fact, and certainly there is, in the genera! apprehension of people, a difference between the liquors mentioned in the statute. Without defining this difference, we cannot interpret the law as meaning the same act, by selling wine or spiritous liquor, or some other intoxicating beverage, although the effect may be the same. The word other itself would obviously carry this meaning, were there nothing more in the statute ; but the entire clause is unambiguous, and different offences are certainly described. In Barth v. The State, 18 Conn. 11, 432, we.held, that in reference to the particular violation of law then on trial, the words house, store, shop or other place, used for the sale of wine or spiritous liquor, meant the same thing, — the same offence, by the same means — i. e. the place of selling, and not the selling. We still approve of that decision, though doubtless, it goes to the verge of the law. But it throws no light on the question now before us. Here, the means of violating the law are distinct and different, each rising above and embracing more than the preceding. We are constrained, therefore, to apply to this information, the well settled principle of law, that in an indictment or information, the offence may not be laid in the alternative. The accused has a right to know, before trial, the exact single offence for which he is to be tried. He may not be tried for one act, or another, or another, at the pleasure of the prosecutor, unless there be as many distinct counts in the information.

The rule we follow may savour of unnecessary exactness, and excite the regret of those, who are labouring to suppress the vice of intemperance ; but if we should, in this comparatively unimportant case, break in upon established principles, no one can foresee where such an innovation may carry us in administering criminal law.

We advise that there is manifest error in the record of the county court.

In this opinion the other Judges concurred, except Waite, J., who was not present.

Judgment to be reversed.