State v. Blaisdell , 33 N.H. 388 ( 1856 )

Fowler, J.

The first question raised in this case relates to the competency of Smith, and upon that we have no doubt.

The pardon was properly proved by the production of the charter of pardon itself, under the great seal of the State. The original possessed quite as much authenticity as a copy could, however authenticated. 1 Greenleaf’s Evidence 446, and authorities.

The effect of the pardon, although granted after the convict had suffered the entire punishment awarded against him, was to remove the common law disability of incompetency to testify as a witness. 1 Greenl. Ev. 446; United States v. Jones, 2 Wheeler’s Cr. Cases 451; People v. Pease, 3 Johnson’s Cases 333.

Three objections to the indictment were taken, and have been insisted upon in the argument, under the motion in arrest of judgment.

The first, that the liquor alleged to have been sold was not averred not to have been liquor imported from a foreign country, and sold by the importer thereof in the original casks and packages in which it was imported, has been fully considered and overruled in State v. Fuller, ante, 259, decided at the present term, where it was expressly held that no such averment was necessary. The grounds of the decision are set forth at length in the opinion in that case.

The second objection, that the respondent should have been alleged not to have been licensed to sell spirituous liquors, instead of being alleged, as in the indictment, not to have been licensed to sell wine and spirituous liquors, cannot prevail. The statute of 1849, under which the present indictment was found, does not authorize the selectmen to grant separate licenses for the sale of wine or spirituous liquors. The language is, “ the selectmen of the respective towns shall license one or more suitable persons to sell wine and spirituous liquors, for medicinal, mechanical and chemical purposes, and for no other use or purpose.” This grant of authority to the selectmen must be construed literally and strictly, and, thus construed, it does not authorize them to divide the subject matter of their licenses, and empower one man to sell wine and another to sell spirituous liquors, for the purposes specified in the act.

Such being the proper construction of the act, the averment of the indictment is obviously sufficient; for the second section, defining the offence with which the respondent was charged, provides that “ if any person, not licensed as aforesaid, shall sell any wine or spirituous liquors,” &c., evidently meaning, not licensed to sell wine and spirituous liquors, as specified in the first section. Laws of 1849, chap. 846; Comp. Laws, chap. 123, p. 270.

Whatever doubts might exist on general principles as to the validity of the remaining objection,' that the indictment is not sufficiently specific and certain, inasmuch as it does not allege the particular kind or species of spirituous liquor sold, the practice in this and other States is too well settled to be overthrown, unless shown to be clearly and palpably wrong.

As a general rule, it is sufficient, in indictments for misdemeanors, to describe the offence in the words of the statute. 1 Archb. Cr. Plead. 88; Wharton’s Am. Cr. Law 184; Commonwealth v. Odlin, 23 Pick. 275.

This rule was followed in the indictment before us, and we see no sufficient reason for holding it to be insufficient. It is in the form believed to have been almost invariably followed in this State since the passage of the act of 1849, and any decision overruling a practice so long established, and under which so large a number of convictions have taken place, would be attended with an accumulation of evils greatly to be deplored, and should not be made unless absolutely required by the clearest principles of legal and constitutional right. We are not aware of the existence of any such principles. And it may well be doubted whether it would not be found utterly impractible effectually to enforce any law, regulating or restraining the sale of spirituous or intoxicating liquors, if it were settled that the government were bound to allege and prove, in every instance, the precise character of the article sold in violation of law.

The objections taken by the respondent’s counsel not prevailing, there must be

Judgment on the verdict.