State v. Dolby , 49 N.H. 483 ( 1870 )

Belloavs, C. J.

The offence charged in the complaint, as it stood originally, was for receiving goods to the value of eleven dollars, knoAving them to have been stolen, describing an offence which, under sections four, eleven, and thirteen of ch. 260 of the General Statutes, is punishable by imprisonment, not exceeding one year, and by fine not exceeding one hundred dollars.

By ch. 234 § 4 of the same statutes, a justice of the peace has jurisdiction, when the punishment is by fine not exceeding tAventy dollars, or by imprisonment not exceeding six months, or by both; and by ch. 195 § 5, police courts have jurisdiction and cognizance of all suits and proceedings in civil and criminal cases, that may be heard before a justice of the peace. This cause, then, Avas not Avithin the jurisdiction of the police court, because the punishment was more than it was authorized to impose. It is urged, however, that although the maximum punishment, is greater than the police court could impose, yet it might properly try the cause and impose a sentence that was within its power to impose ; holding it to be like an accusation of a high crime, which includes a lesser offence, where there may be a conviction and punishment of the. lesser offence only.

We think, however, this cannot be the law.' The offence as described in this complaint, is subject (o a punishment, that places it beyond the jurisdiction of the police court. It is true, that the court upon trial might in its discretion, be disposed to inflict a lighter punishment than the maximum, and within the ordinary power of a police court to impose ; but this cannot affect the question of jurisdiction. That must depend upon the offence described, in the complaint or indictment; and here the offence described is punishable by imprisonment for one year and a fine of one hundred dollars, and such an offence the police court has no jurisdiction. When the grade of the offence depends upon the amount, as in larceny, the statement of value in the complaint or indictment governs the question of jurisdiction, and not the finding of the court or jury.

The statement of the value, is part of the description of the offence, making the distinction between,the different grades ^* of larceny, and for that reason it is held to be necessary to state the value in the complaint or indictment. State v. Goodrich, 46 N. H. 186, and cases cited. So it is laid down in 2 Ch. Cr. Law * 948, and so is 2 East, Crown Law 798, citing 2 Hale 183 ; and the same doctrine is found in Wharton’s Am. Cr. Law 571, and cases cited; among them is Hope v. Com. 9 Met. 134.

From this, it would naturally be inferred, that, when the jurisdiction depends upon the value of the subject-matter of the offence, the statement in the complaint or indictment must be decisive, so far as to determine the question of jurisdiction, like anything else that is descriptive of the offence. If the value of the article stolen, is less than ten dollars, a justice of the peace has jurisdiction, and the supreme judicial court may dismiss the prosecution in such case when originally commenced therein. Gen. Stat. ch. 234 § 1. If the indictment, however, describes an offence not within the jurisdiction of a justice of the peace, the goods stolen being stated to be of the value of ten dollars or more, the supreme court would, without hesitation, exercise jurisdiction; the offence described being clearly within it.

It would be altogether anomalous, to institute an enquiry as to the actual value of the goods, and dismiss the prosecution if found to be below ten dollars in value.

Then, how should such an enquiry be made? Should it be upon plea in abatement or plea of not guilty ? Such a precedent, we think, can no where be found in this state, and in view of the probable consequences of such a practice, the courts would be slow to introduce it; for the jurisdiction would, in a .large number of cases, be wholly uncertain, depending upon the estimate of different tribunals ; a jury finding the goods of less value than ten dollars, and so not within the jurisdiction of the supremo court; and the justice or police court, finding them to be of ten dollars’ value, and so not ■ within their jurisdiction.

Again : what should be done, in case an indictment charged the stealing of sundry articles of the value in the aggregate of ten dollars or more, and the jury found the respondent guilty of stealing a part only, and those of less value than ten dollars ?

It is clear in such case, that the jurisdiction of the court would not bo affected, any more than if ho was found to be not guilty of stealing any of the goods ; and yet the allegation of value stands upon the same footing in respect to conferring jurisdiction, as the allegation that the respondent stole certain goods. Taking it all together, it charges an offence which is, or is not, within the jurisdiction of the court to try; and that, we think, must determine the question of jurisdiction.

This is in accordance with all the analogies in civil cases, where the jurisdiction depends upon the sum demanded in damages. There it has been uniformly, held, that the jurisdiction is determined by the ad damnum and is not defeated by showing that the matter in dispute is more or less than the sum demanded. So it is, in Massachusetts, Hapgood v. Doherty, 8 Gray 373, where the account annexed, which plaintiff claimed exceed the jurisdiction of the police court, but it was held, that the ad damnum, governed the jurisdiction. So, when the damages laid, were greater than the jurisdiction of a justice of the peace, but he rendered judgment, for a sum within his jurisdiction ; on appeal the court above held, that the justice had no jurisdiction. Ladd, Adm’r v. Kimball & al., 12 Gray 139.

Much the same is Bank v. Pearson & al., 14 Gray 521, where, in a suit in the police court, the ad damnum exceeded the jurisdiction of that court, and there was judgment for defendant; on appeal the cause was dismissed for want of jurisdiction.

So, when, by the judiciary act of Congress of 1789, sec. 11, the circuit courts have jurisdiction in certain cases where the matter in dispute, exclusive of costs, exceeds the sum or value of §500, it is decided, that the amount laid in the declaration, is the amount in controversy. Green v. Litee, 8 Cranch. 229 ; Gordon v. Longest, 18 Peters. 97; and Kanonse v. Martin, 15 How. U. S. Rep. 198. And the same rule applies to the removal of causes from the state courts ; and it was held in the last case, that after this right of removal was complete, the defendant could not be deprived of that right, by an amendment in the state court, reducing the sum demanded in the declaration.

Under the 20th section of this judiciary act, it was held, in Green v. Litee, before cited; that of the plaintiff shall recover less than §500, it affects the costs; and so is Gordon v. Longest, before cited.

In these cases, it seems to be well settled, that the ad damnum governs the question of jurisdiction hot only when the statute makes the sum demanded in damages the criterion, but when it makes the amount in dispute the turning point. ^*

If it be true, as we think it is, that the question of jurisdiction in criminal causes, is to be determined by the character of the offence, as described in the complaint or indictment, it is equally true, that if the accusation also includes a lesser offence, there may be a conviction and punishment of such lesser offence, and therefore if in an indictment for grand larceny, the jury find the value of the goods, stolen to be such as to constitute petit larceny only, the conviction may be for the lesser offence only.

The pi’inciple of a decision, that should allow the police court to entertain jurisdiction of a charge for larceny of a higher grade than it could punish, would allow it to take jurisdiction of complaints for many crimes of a high grade, and render judgment therein, for-some inferior offences, which it had jurisdiction to try, as in the case of a charge of manslaughter, or assault with intent to kill and murder, when upon indictment a jury might find the accused to be guilty of a simple assault and battery ; or in the case'of a charge of burglary, the respondent might be found guilty of larceny, to the amount of less than ten dollars.

In such cases, a judgment-upon such finding, would be a bar to a another trial for the higher offences, because the accused had once been tried for the higher offences and acquitted.

If the police court could try such complaints, and sentence the respondent for the lighter offences, it must be attended with the consequence that it would be a bar to another trial for the higher offences, and this could not for a moment be admitted.

The truth is, that neither a justice of the peace nor police court has any power to try such causes, any farther than to determine whether the accused shall be held to answer in another tribunal; and just so it is, when the charge is for a larceny of a higher grade, than it has power to punish.

In the case before us, the complaint charged a crime, that was beyond the power of the police court to try and pass sentence upon. He could neither, render a final judgment of not guilty, or that he was not guilty of the crime charged, but was guilty of a lesser crime. In the matter of Berry 7 Mich. 467, — which was habeas corpus to relieve a person from imprisonment, under a sentence by a police justice to pay a fine of $50, and in default thereof to be imprisoned ninety days for attempting to join in marriage a negro and a white person, — the offence was punishable by fine not exceeding $500, or by imprisonment not exceeding one year, and this was beyond the power of the police court to impose. It was held, that this was clearly beyond the jurisdiction of the police justice, and the prisoner was discharged upon the ground, that when the maximum punishment exceeded the limits imposed upon police courts, they had no jurisdiction, and this case is in point here.

In the case of the State v. Arlin, 27 N. H. 128, which was an indictment for larceny of goods of a greater value than ten dollars, it was held, that there might be a conviction for stealing goods of less value than ten dollars. It appeared, that the respondent was bound over by a police justice, on a complaint, for stealing goods of a greater value than ten dollars, and the court, per Woods, J., seems to hold, this action of the police court, as decisive on the question of value, saying, that it was his duty to enquire, and if he found the goods of greater value than ten dollars, to bind over the accused, and if of less value than ten dollars, to try him. It will be perceived,-that he does not consider the effect of the allegation in the complaint, nor does he discuss the question at all. He holds, however, that independently of these proceedings of the magistrate, the finding of the bill by the grand jury, would seem to have the effect of determining the jurisdiction of the court; and that, we think, was the sound view of the case. Had the learned judge’s attention, been called to the fact that the charge in the complaint before the police court, was for an offence beyond its jurisdiction to try, we presume, he would have held as he did in respect to the chaige in the indictment.

The question then arises', whether upon appeal an amendment could be made in the description of the offence, so as to remedy this want of jurisdiction, when the cause was tried.

The jurisdiction of this court, is in this case wholly appellate, and unless the court below had jurisdiction, this court could do nothing but dismiss the appeal. It could not make an amendment, to affect the case, as it stood before the police court. This is the-doctrine in Ladd v. Kimball & al., 12 Gray 139, which was tort, and the damages laid at $180, when the jurisdiction of the justice of the peace was only $100, he rendered judgment for that sum, from which defendant appealed ; and in the appellate court, the plaintiff moved to amend by reducing the ad damnum, to $100, but the motion was denied, upon the ground, that whatever power the court above might have to amend, it could not affect the case, as it existed before the justice.

We think, also, that the allegation of value, is not matter of form, but of substance, and, therefore, cannot, under our statute, be amended. State v. Goodrich, 46 N. H. 186, and cases cited.

The appeal must, therefore,

Be dismissed.