Commonwealth v. Collins , 9 Leigh 234 ( 1839 )

An information was filed against Jerome B. Collins in the circuit superiour court of Orange county, at April ^*term 1832, for selling by retail goods, wares and merchandise of foreign and domestic growth and manufacture, without a lawful license' for so doing. The information was filed upon a presentment made by the grand jury at the previous term, “upon the evidence of J. Cave, commissioner of the revenue, sworn in open court to give evidence before the grand jury.” Issue being joined on the plea of not guilty, the cause was continued in court until September term 1836; when a jury being impanelled to try the issue, returned a verdict finding the defendant guilty. He thereupon moved the court to arrest the judgment, “because the remedy given by the act of assembly is a remedy by motion, and no information or indictment will lie against the defendant in this case; the offence with which he is charged being created by statute, and not being an offence at common law, and there being no provision in the law for its prosecution by such mode as has been pursued here.” The circuit court, with the consent of the defendant, adjourned to this court the questions,

1. What judgment oug'ht to be rendered upon the errors filed in arrest of judgment?

2. What judgment ought to be rendered upon the verdict ?

The general court responded as follows— “This court is of opinion and doth decide, that the errors filed by the defendant in arrest of judgment ought to be overruled, and judgment entered for the commonwealth, for the penalty prescribed by the 2d section of the act passed the 24th day of Rebruary 1823, entitled ‘an act to amend the several laws imposing a tax on licenses to merchants and others, and for other purposes’ — and for the costs of the prosecution.” By the 1st section of the abovementioned act of February 24, 1823 (Suppiem. to Rev. Code, ch. 270, p. 326,) it is declared, “that hereafter It shall not be lawful for any merchant to carry on his trade or occupation, until he shall have paid the tax imposed by *law, and obtained a license or commission, agreeably to the provisions of this act.” The 2d section, after prescribing the mode of obtaining a license to sell goods, wares and. merchandise of foreign and domestic growth and manufacture, by wholesale or retail, or by retail only, proceeds to enact that “if any person or persons shall sell such goods, wares and merchandise, either by wholesale or retail, without having first obtained such license, such person or persons shall, for every such offence, forfeit and pay the sum of one hundred dollars, one half thereof to the use of the informer, and the other half to the use of the literary fund; to be recovered by motion in any court of record, on ten days previous notice.”

By the 2d section of an act passed February 29, 1828, amended by the 1st section of an act passed February 28,1829 (Suppiem. to Rev. Code, ch. 274, § 2, ch. 275, § 1, pp. 332, 333,) it is declared that it shall be the duty of the commissioners of the revenue, annually, at some quarterly term of the court holden for each county and corporation, “to render to the court a list of all such merchants, within their respective precincts, whom they shall have just, cause to believe have failed to take out license as required by law; and also a list of such witnesses as, in their opinion, may give information of any such failure. And the court shall thereupon order process to bring such witnesses in, who shall be sworn, and forthwith sent to the grand jury, to give evidence touching any of said offences. And upon any presentment being made by such grand jury, it shall be the duty of the attorney for the commonwealth to file an information or indictment against such person or persons presented, and the court shall give judgment, upon conviction, for the penalty or penalties now imposed by law upon any such offenders.” This act, it will be observed, applies in terms to the county and corporation courts only. — Note in Original Edition.

* See monographic note, on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 647.