State v. Gurney

Wells, J.

— The respondent was charged in a complaint, made to the Judge of the Municipal Court of Saco, with a violation of the law by selling spirituous and intoxicating liquors. Upon conviction in the Municipal Court, he appealed, was tried by the jury and found guilty. He now moves, in arrest of judgment for two reasons. 1. Because the provisions of the Act, upon which said complaint is founded, are in conflict with the constitution of this State. 2. Because no legal sentence can be imposed by the Court.

By the constitution of this State, the Legislature “ shall have full power to make and establish all reasonable laws and regulations for the defence and benefit of the people of this State, not repugnant to this constitution, nor to that of the United States.” Art. 4, part 3, § 1. Under this branch of the constitution the Legislature would have a right to regulate by law the sale of any article, the use of which would be detrimental to the morals of the people. One of the incidents of civil society is self protection, and this object cannot be effected without necessary police regulations. It is unnecessary to determine the question, whether an importer of foreign liquors could lawfully sell them, when prohibited by a statute of the State. For the defendant sold by retail in the town of Saco, and must be regarded as liable to the penalty prescribed by a statute, which the Legislature had the constitutional authority to enact.

But it is contended, that the provisions of the sixth section of the Act of 1851, upon which the complaint was founded, are unconstitutional. The respondent had a right to a trial by jury, and to obtain it, it was necessary that he should appeal. If he had, upon taking the appeal, claimed the right to do so, and refused to have complied with the objectionable provisions, he would have placed himself in a position to contest the constitutionality of them. Nothing more than reasonable security for his appearance should be required of an appellant seeking a trial by jury. By the Re *162 vised Statutes, c. 170, § 8, one may appeal in a criminal case, and the justice or Judge of the Municipal Court shall grant the appeal, and order the party “ to recognize in a reasonable sum, not less than twenty dollars, with sufficient sureties for his appearance, and for prosecuting his appeal, and he shall stand committed till the order is complied with.” Thus he may appeal, and whether he goes into jail or enters into a recognizance, he can claim a trial by jury. If the sixth section of the Act before mentioned was unconstitutional and void, no such objection would lie to the provisions of the Revised Statutes, and the respondent might have claimed an appeal in conformity with them. They would apply to all cases where one might claim an appeal under subsequent statutes, if they were not changed. If, then, the sixth section should be considered void, that infirmity would not infect the residue of the statute, and render its other requirements inoperative. The general statute would supply any such defect, and applying to all cases of a similar character without exception, would prescribe the terms of an appeal.

But the respondent complied with the conditions imposed upon him, and his appeal was allowed. The appeal was lawful, and the case was properly entered and prosecuted in the appellate court, and although conditiohs were prescribed more rigorous than the constitution might justify, such requisitions would not annul the appeal. If a magistrate, before he would grant an appeal, should require the payment of an unlawful sum of money, and. the appellant should pay it, the appeal would be valid5 and the law Would furnish a remedy for the unlawful act. The requirement of unlawful bonds must stand upon the same ground; they would be void, while an appeal in itself legal and correct would be valid.

In the case of Greene v. Briggs, 15 Law Reporter, 614 , the goods were replevied and there was no appeal. The order of forfeiture was held to be “invalid for two reasons, first, because there was no sufficient complaint ? and secondly, because the plaintiff was deprived of his property by a- *163 criminal prosecution, in which lie neither had, nor could have a trial by jury, without submitting to conditions which the Legislature had no constitutional power to impose.” If the plaintiff had submitted to such conditions, the case would have been very different from that, which was presented to the consideration of the Court.

But it is also contended, that no legal sentence can be imposed upon the respondent. The sixth section of the Act of 1851 provides, “and in the event of a final conviction before a jury, the defendant shall pay and suffer double the amount of fines, penalties and imprisonment awarded against him by the justice or judge from whose judgment the appeal was made.” ’

The respondent had a right secured to him by the constitution of a trial by jury, and to enjoy it, he must appeal. If he desired to be free from restraint or confinement, he must give reasonable security for his appearance at the trial. The language of the constitution is, that “ excessive bail shall not be required.” Every condition beyond what is necessary to secure the prosecution of the appeal must be regarded as objectionable. The Legislature has no power to impair a right given by the constitution, it belongs to the citizen untrammeled and unfettered. If the Legislature can impose penalties upon the exercise of the right, ■ they may be so severe and heavy as practically to destroy it. The provision under consideration would have the effect, as it was ■doubtless intended, to check appeals. It is an additional punishment inflicted upon one, who may be found guilty, for appealing. It may be said, that if a man is guilty, he ought not to appeal. But through the imperfection of human tribunals, acting upon evidence, the guilt or innocence of the accused cannot be made absolutely certain. An innocent man may be declared guilty by a verdict of a jury. And if he is threatened with a double punishment, in case of a final conviction, he might be deterred from appealing by the uncertainty of the result. But the constitution guarantees to the respondent, whether innocent or guilty, a right of *164 trial by jury, without any qualifications or restrictions. In Greene v. Briggs , it was said by Judge Curtis, “ I find it equally difficult to reconcile the increase of penalties upon a conviction after an appeal with the unimpaired enjoyment of the right of trial by jury. The Act inflicts a fine of twenty dollars, if a conviction takes place before a justice of the peace. It must be that the Legislature considered this the appropriate penalty for the offence. Certainly it cannot be said that the offence is aggravated by the accused having claimed a trial by jury. Eor what then is the additional penalty of eighty dollars, or the additional imprisonment of thirty days, inflicted ? If the offence, remains the same, and the offender has done nothing but claim an appeal, in order to have his case tried by a jury, must not these additional penalties be founded on the exercise of that right ?”

This provision of the statute must be regarded as an unnecessary restraint upon the right of appeal, and therefore in conflict with the constitution, and inoperative and void. But the fourth section of the Act provides, that the offender “ shall forfeit and pay on the first conviction, ten dollars and the costs of prosecution, and shall stand committed until the same be paid,” &c. This appears to be an appropriate fine, and it is not stated by what tribunal it may be imposed, and any one having jurisdiction may exercise that power. As the double penalty cannot rightfully be inflicted, the single one must remain, especially as its imposition is not confined by the statute to the action alone of a justice of the peace, or Judge of a Municipal Court. This Court has therefore authority to impose a legal sentence. Motion overruled.

Shepley, C. J., and Tenney and Howard, J. J., concurred.