State v. Hopkins

The objections to this indictment under the first exception, to wit, the want of the words "there situate," after the words "place and tenement," and the want of the words "then and there," before "used," in both counts of it, although they might have prevailed in the English courts at one period, and in some of the American courts, it seems, would now prevail, proceed upon an obsolete notion, never based upon reason, and which has been deliberately discarded by the highest authority in modern times. The notion is, that although venue and time are given in the indictment, yet unless both are repeated before each subsequent material allegation, "the place," intended by the law, is not the place before stated by way of venue, and the time, is the time of filing the indictment. It is obvious how far such an artificial rule of construction might lead us from the natural import of the language used, and how violative it might be of the well established general principle with regard to certainty in indictments, that they need be certain only to a common intent. No one reading this indictment would for a moment doubt, that the pleader who draughted it intended to convey the notion, that theplace of the nuisance was in Providence, where it is alleged that it was kept and maintained, or, that the time when that place was used in such manner as to make it a nuisance in the eye of the law, was the time when it is alleged that it was thus kept and maintained; and the only question is, whether there be any established rule of construction of indictments, which forces us away from this natural import of the words used, and compels us to say, that, in truth, there is no averment of place, with regard to the house, c., or of the time, when it was used in such manner as to make it a nuisance. As long ago as when Mr. Chitty compiled his well known Treatise upon Criminal Pleading, he tells us, that "it seems, however, that the nicety which requires these words (``then and there') to be cautiously inserted to every material allegation is not so strictly observed in indictments for inferior offenses, as in cases where the life of the prisoner is in danger;" and he instances cases of trespass, and of forcible entry and detainer, and cites Lord Hale, Burn's Justice, and cases running back, through Croke Charles, and Croke James, to old Dyer. The reason given by him, why the repetition of time and place may be spared in such cases, is the opposite of the rule contended for, to wit, "because the time and place named in the beginning refer to all the subsequent averments." 1 Chit. Crim. Law, 221, 222, and see Baude's case, Cro. Jac. 41; Dyer, 69. In Rex v. Napper, 1 Moody's Crim. Cases, 44, (1824,) which was an indictment for stealing from a dwelling-house, a doubt arose at the assizes where the prisoner was convicted, whether the indictment, not containing the usual words "there situate," after the words "dwelling-house of William Thomas," sufficiently described the house; and the question was submitted to the consideration of the judges. They held, upon consultation, that the indictment sufficiently showed the place of the house; and, as the reporter informs us in his marginal note, upon the ground, that "if it is not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named in the indictment by way of venue." InCommonwealth v. Lamb, 1 Gray, 495, where there was a like omission in an indictment for the wilful and malicious burning of a barn, the supreme court of Massachusetts supported the indictment upon the same ground. See, too, Stout v.Commonwealth, 11 Serg. Rawle, 177; 1 Russell on Crimes, (7 Am. ed.) 827. In Regina v. Inhabitants of Turweston, 1 Eng. L. Eq. 317, which was an indictment against a parish for not repairing a highway, the court rejected the allegation of the immemoriality of the highway, in order to uphold, and did uphold, the indictment; although, the rejection of the allegation left the indictment uncertain, according to the strict rule here contended for, as to whether there was a highway legally existing during the time it was alleged to be out of repair. In other words, the Queen's Bench held, in 1850, that time was sufficiently alleged as to the material allegation of the existence of a highway at the time it was charged to be out of repair, by reference to the time when alleged to be out of repair, that being the fair import of the words; or, in the language of Mr. Justice Coleridge, the indictment not being left, by the rejection, "insensible" in that respect. See, too,Commonwealth v. Kimball, Monthly Law Reporter for February 7, 1857, p. 582, decided by the supreme court of Massachusetts. We deem it quite too late in the day to revive the strictness in these particulars required by the extremest line of ancient decisions, always deplored by the greatest English judges, from Lord Hale to Lord Ellenborough "as grown to be a blemish and inconvenience in the law, and to the administration thereof," (1 Chit. Crim. Law, 170,) when we find that such senseless strictness has been discarded in the courts of its origin, and rejected by so high authority in our own.

2d. The second exception is certainly not maintainable. The bill of exceptions does not recite, or even give us in substance, the testimony upon which it complains that the judge presiding at the trial charged the jury, "that proof of keeping and maintaining a bar room, on the days and times mentioned in the indictment, for the illegal sale of intoxicating liquors, would sustain the allegation that the defendant kept a tippling shop." The bill does not therefore raise the question argued for the exceptant, whether the latter is not a word of larger meaning than the former; since, if the proof was, that the defendant kept a bar room in a shop, the argument confesses that the shop would be a "tippling shop," and that the proof on keeping the former would be direct, to support the allegation of the indictment.

Besides, the 3d section of the act under which this indictment was found, (Sched. of January Session, p. 10; Rev. Stats. ch. 73, sect. 3,) expressly provides, "that the keeping of the implements or appurtenances usually appertaining to grog shops, tippling shops, or places where intoxicating liquors are sold," all which is implied in the keeping of a barroom, "shall be prima facie evidence that such premises are nuisances within the meaning of the 1st section, c." In obedience to the statute rule of proof, we do not see how the judge below could avoid charging, as it is complained in the bill of exceptions he did in this particular.

3d. The same course of remark applies to the third and last exception. The bill does not disclose with anything like fulness, or at all, except as we can infer it, what the proof was, upon which the charge of the court is deemed by the exceptant to be erroneous, in the particular mentioned in this exception. It was the duty of the exceptant to furnish us with the basis for our review of the charge of the judge below, if he desired that we should review it. In the absence of this, if in application to such a case, the charge could have been correct in any supposable state of the evidence, we are bound in all fairness to presume that it was so.

Certainly there is one mode of sale, which, for aught that the bill discloses, might have been the mode of sale proved upon the trial against the defendant, which all would admit rendered any proof negativing a license or authority to the defendant, to sell, unnecessary to be produced by the state in support of this indictment; we refer to a sale by the glass, the liquor to be drank upon the premises. All such sales are absolutely prohibited. No license, known to our law, authorizes them; and hence, further proof of want of authority than what arises from the mode of sale itself, would, certainly, in any view of the case, be unnecessary. Now, it is precisely this mode of sale which the second exception indicates, that the proof tended to show was practised by the defendant; for that exception, as we have seen, complains of the potency attributed by the presiding judge to proof that the defendant kept and maintained a "bar room" in his shop, c., a place appropriated, according to its received meaning, to the sale of wine and strong liquors by the glass. What need then of further proof of want of authority than the doing of an act which could not be authorized? By the very terms of the 3d section of the act under which this indictment is brought, as we have had occasion in considering the second exception to see, the mere proof of keeping of a bar room, embracing, as it does, "the implements or appurtenances usually appertaining to a grog shop or a tippling shop, is made primafacie proof, of itself, that the place complained of is a nuisance. This view of the matter renders it unnecessary for us to consider the more general question discussed under the exception at the hearing, since, upon the narrower ground above stated, this exception also must be overruled.

Exceptions overruled, and case remanded to the court of common pleas for the county of Providence, for further proceedings.