State v. Thornton ( 1884 )

In an indictment or complaint, under Gen. Laws, c. 109, s. 15, for selling or keeping for sale lager beer, it is not necessary to allege or prove that lager beer is intoxicating. The stattute [statute] expressly prohibits the sale and keeping for sale of lager beer. The offence is created by the statute, and it is sufficient in an indictment to follow the language of the statute when the words of the statute are descriptive of the offence. State v. Blaisdell, 33 N.H. 388; State v. Keneston, 59 N.H. 36; Com. v. Timothy, 8 Gray 480; Com. v. Anthes, 12 Gray 29; Com. v. Dean, 14 Gray 99; Com. v. Chappel, 116 Mass. 7; 1 Bish. Cr. Proc., s. 612 and notes; Bish. Stat. Cr., s. 1038.

The repeal of s. 17 of c. 109, Gen. Laws, which restricted the enforcement of ss. 15 and 16 of that chapter to such towns as should by a majority vote decide to enforce them, instead of repealing those sections left them in force and operative as if section 17 had never been enacted.

The objection, that Catharine Thornton could not be convicted of a second offence because the police court of Concord had no jurisdiction of the first offence of which she was convicted, is not sustained. For anything appearing, the former conviction and judgment may have been upon a plea of guilty, which authorizes a justice of the peace or police court to impose sentence and judgment for any offence mentioned in c. 109, Gen. Laws. If, upon the introduction of the evidence, the judgment of the police court is found to be unauthorized, the proof of a former conviction will fail, but the indictment will be sufficient to sustain a conviction of a first offence.

In the cases of James Thornton and Taylor, the police court exceeded its jurisdiction in imposing fines. On a plea of not guilty, the court could only order the defendants to recognize to appear at the next trial term of the supreme court, and abide the order of that court, and in the meantime to be of good behavior (G. L., c. 109, s. 22), and the judgments appealed from being unauthorized and void, the appeals should be dismissed.

Exceptions overruled, in the first case.

Exceptions sustained, in the second and third cases.

SMITH, J., did not sit: the others concurred.