State v. Stinson , 17 Me. 154 ( 1840 )

The opinion of the Court was by

Weston C. J.

Without finding it necessary to investigate the question of the jurisdiction of the Common Pleas, in respect to offences of this class, at a former period, we are of opinion, that that Court and its successor, the District Court, has jurisdiction of the offence charged, in virtue of the stat. 1823, c. 233. That statute gives to the Court of Common Pleas, in general terms, concurrent jurisdiction with the Supreme Judicial Court, of all erimes, offences and misdemeanors, with certain exceptions, not embracing the case before us. This grant of power is not limited to offences, made such by laws then existing. It is prospective in its operation, creating the Common Pleas, with certain specific exceptions, a court of general criminal jurisdiction. The act, establishing the Supreme Judicial Court, stat. 1820, c. 54, <§> 1, gave that court cognizance of all offences and misdemeanors of a public nature, and of every crime whatsoever, that is against the public good. It cannot be doubted, that whenever the legislative power might by subsequent enactment, declare a certain act an offence, and prescribe a punishment for its commission, upon conviction, the power of the Supreme Court, to take cognizance of it, would thereupon attach. It would be a narrow construction, and a most inconvenient restriction of the judicial power, to limit their jurisdiction to such offences only as were declared such, before the passage of the act, conferring the jurisdiction. It would enable offenders in many instances, to set the law at defiance. The Court of Common Pleas, by the stat. 1823, before cited, are expressly invested with all the criminal powers of the Supreme Court, with certain well defined exceptions. And it has become more important to sustain the general jurisdiction of the Common Pleas, now the District Court, as by the stat. 1836, c. 196, the criminal jurisdiction, which they before held, concurrently with the Supreme Court, is made exclusive.

The stat. 1835, c. 193, having provided, that the penalties incurred under the act of 1834, c. 141, to which that was additional, might be recovered by indictment, it is necessarily implied, that it must be in the name of the State. What penalty or forfeiture is incurred, and to what uses applied, depends upon the law, and need not be set forth in the indictment. There is but one offence charged against the defendant, and that is, his being a common retailer, without license. This it is expressly averred, he did take it upon himself to be. In order to avoid unnecessary prolixity, general averments of divers sales to divers persons, of divers quantities of said strong liquors, from a specified day to the finding of the indictment, have been received as a sufficient specification of the offence, which consists in being a common retailer, without license.

The last section of the stat. of 1834, provides, that the act shall take effect from the first Monday of Sept, following its enactment, and declares all acts and parts of acts, relating to the subject matter, repealed, “ from and after the time aforesaid.” This must be intended to mean all other acts. It would be absurd to hold the 'act repealed, at the very moment when it was in express terms to take effect. In the subsequent stat. of 1835, c. 193, that of 1834 is treated as a subsisting act, and further provision is made for its enforcement. The exceptions are overruled, and the case remitted to the District Court.