State v. Cottle , 15 Me. 473 ( 1839 )

The indictment was continued, and the opinion of the Court was afterwards drawn up by

Wkston C. J.

The statute of 1835, c. 193, authorized the recovery of the penalty, imposed in those cases, by complaint or indictment, before any Court of competent jurisdiction. The law does not require the name of the complainant to be inserted in the indictment, nor is it usual, nor would it be proper to do so. The appropriation of the penalty depends upon the general law. It is no part of the offence, nor essential to its description. By Windsor in the indictment, must be understood the town of Windsor. It is described as being in the county of Kennebec; and the Court will take notice, that there is such a town in that county. And the offence is alleged to have been committed in Windsor.

The defendant is charged with presuming to be a common retailer, from the first day of Nov. 1835, until the finding of the indictment. This is a definite and fixed period, to which the conviction may be referred, the force of which is not impaired by the averment, that he had also been guilty, before the period first stated. It might have the effect to protect the defendant from any other prosecution for a similar offence, at any time prior to the indictment. The averment, that the defendant did presume to be a common retailer, is expressive of the fact, that such' was his habit. This coupled with the averment, that he did sell to divers persons, within the period stated, is a sufficient description of the offence. He is charged with doing that, which the statute declares, shall not be allowed to any person to do, without a license. It is one of that class of offences, which to avoid unnecessary prolixity, may be described in general terms. To sell twenty-eight gallons, to be carried away at one time is lawful; but to sell less than that is unlawful, whether carried away at one time, or at several times.

The objection taken, that the offence charged is double, does not appear to us to be sustained. We are not satisfied, that the law imposes as many penalties, as there may have been kinds of strong liquors, of which the party charged may have presumed to be a common retailer. The indictment does appear to have been found within one year after the offence was committed, so that it is not barred by the statute of limitations, although the penalty is appropriated to the use of the town.

Exceptions overruled.