Lord v. State , 37 Me. 177 ( 1853 )

Tenney, J.

— The only error assigned is, that the appellate court sentenced the appellant upon conviction by the jury, to pay a fine of twenty dollars and costs of prosecution.

1. It appears that the fine and costs, before the appeal was taken, was less than one half the amount of the fine and costs awarded after conviction by the jury. And it is insisted, that the appellate eourt, by statute of 1851, c. 211, § 6, is restricted in the sentence to a sum, which is double the aggregate amount of the fine and costs, awarded by the Judge or justice, from whose sentence the appeal was taken.

The party accused, after conviction by the jury, is not relieved from the payment of full costs of the prosecution. The amount is not limited to double the sum, which he was required before the appeal, to pay. The sum to be doubled is the fine or penalty of the justice of the peace, the Municipal or Police Court. The terms “fine” and “penalty” signify a mulct for an omission to comply with some requirement of law; or for a positive infraction of law; and do not include the costs, which accrue in the prosecution. That this was the intention of the Legislature, is manifest from the requirement in § ,6, that before an appeal shall be allowed, the appellant shall recognize to pay a,ll costs, fines and penalties, that may be awarded against him, on a final disposition of the complaint. This language will not admit of the construction contended for, by the plaintiff in error.

2. A further ground for a reversal of the judgment for error, is, that § 6, so far as it requires, on conviction by the jury in the appellate court, that the accused shall pay and suffer double the amount of fines, penalties and imprisonment, awarded against him by the Judge or justice, from whose sentence the appeal was made, is unconstitutional and void. And therefore, there was no valid authority for the sentence imposed.

The complaint contains charges of several distinct violations of the statute, as contained in § 4, in as many separate counts. There is nothing in the record, indicating, that they were all for the same offence. He was found guilty by the justice, before whom he was brought and tried, of the sale of one gallon of rum only. He was sentenced to pay the fine required by the 4th § and the costs of prosecution. The appeal annulled the sentence of the justice, and he was entitled to be tried upon the complaint by a jury, and such trial he sought and obtained. In the language of the judgment, “ the appeal was entered.” —“Now; the said Rufus M. Lord is set to the bar, and has this complaint read to him, and pleads and says he is not guilty thereof, and for trial puts himself on the country. Whereupon a jury was empanneled according to law to try the issue, who return their verdict therein, and upon their oath say, that Rufus M. Lord, the defendant, is guilty.” “It is therefore considered by the Court here, that said Rufus M. Lord forfeit and pay a fine of twenty dollars, and costs of prosecution,” &c.

By the verdict rendered he was convicted upon the whole complaint. It was read to him in all its different and distinct charges, and he pleaded thereto. The record does not ’ show that, they were for one, and the same offence. They may be well understood from the variation in one from the other, to have been designed for distinct offences. It is competent to frame the complaint, so that two or more offences of the same nature,” and upon which the same or a similar judgment may be given, shall be contained in different county of the same indictment. Kane v. The People, 8 Wend. 211; 1 Chit. Crim. Law, 252, 253 and 254. The forfeiture prescribed by § 4, on the-first conviction is the sum of ten dollars. The record does not show, that the sentence sought to be reversed as' erroneous, was a single fine for a conviction of the first offence, made double by the authority of § 6. If the plaintiff in error was guilty of two of the counts in the complaint, as the tebord shows that he was, he incurred the penalty of ten dollars on each.

If the Legislature had no power under the constitution to provide for a greater fine on conviction before a jury, after an appeal, than that imposed by the tribunal from which the appeal was made, (of which we give no opinion,) it-does not appear from the record before us, that a greater penalty was awarded by the appellate court, than that which was deemed by the Legislature appropriate as expressed in § 4. Judgment affirmed.

Shepley, C. J., and Wells, Howard and Appleton J. J., concurred.