Barnett v. State , 36 Me. 198 ( 1853 )

Howard, J. —

The plaintiff has brought this writ of error to reverse the judgment of the Police Court for the city of Gardiner, rendered against him, on a complaint for keeping spirituous and intoxicating liquors, intended for sale, deposited in a building in that city, occupied by him and others ; in which it is alleged, he “keeps a shop or store,” without being appointed the agent of the city»-, “ to sell therein, spirits, wines or other intoxicating liquors.” The proceedings -were under the Act of 1851, c. 211, and are, clearly, erroneous in many respects. It does not appear by the record and judgment, that the accused was charged, or found guilty of keeping such liquors, so deposited, as intended for sale in the city of Gardiner, or, indeed, in any town or place in this State; and without enumerating, or considering other objections to the proceedings, apparent upon the record, this is irremediable and fatal. State v. Robinson, 33 Maine, 564; State v. Gurney, 33 Maine, 526.

But it was contended at the argument, that error will not lie in this case, because the accused might have appealed from the judgment. Though, by pleading in millo est erratum, it would seem that the government might have been debarred from this argument, yet, as it was addressed to us without objection, .and as it involves an important principle, not unfrequently invoked, we think it may subserve the public interest to consider it, on this occasion.

The rule so often stated, upon the highest authorities, that error will not lie where an appeal might have been taken, is now received with many qualifications. The reason for the rule is, that the remedy by appeal is more direct, more convenient, more extensive and complete, and less expensive to the parties, than can be afforded by a writ of error, and therefore, it ought to be pursued. But where a party has lost this right of appeal, in a civil case, without laches, and without having waived it, either expressly or by implication, the remedy by error, may be still open to him. Brown v. Jewell, 33 Maine, 250; Monk v. Guild, 3 Met. 372. Although this remedy by appeal, in civil cases, takes away the remedy by a writ of error, by implication, as a general rule, yet, in criminal cases, the reason for the rule ceases, and there it does not apply. The appellant in such cases, is required to recoguize with surety to prosecute his appeal, or stand committed. His remedy by appeal would often be more onerous than that by a writ of error, to reverse an erroneous judgment, and therefore it is, that his right to proceed by error, is not taken away, or impaired, by giving him the right of appeal. Cooke, petitioner, 15 Pick. 239; Thayer v. Commonwealth, 12 Met. 9; Co. Litt. 288, b; 3 Black. Com. 407.

At common law a writ of error lies for mistakes in the proceedings of courts of record, only ; but this Court, by statute, has general jurisdiction, and power to issue writs of error to courts of inferior jurisdiction, proceeding according to the course of the common law, though not technically courts of record, to correct errors in their proceedings and judgments. But where the proceedings of such courts are not according to the course of the common law, but are erroneous, the remedy is not by error. R. S. c. 96, §§ 4, 5. In the present case, error lies. Judgment reversed.

Shepley, C. J., and Wells, Rice and Hathaway, J. J., concurred.