State v. Robinson

AppletoN, J.

— The statute of this State, for the violation of which this indictment was found, prohibits, in the most explicit terms, all sales of spirituous and intoxicating liquors, and would be equally violated whether the liquors sold were imported or domestic — were sold in smaller or in larger quantities.

An indictment in the State Courts, regards only the law *153 of the State against which the offence is committed. It is not necessary to negative possible and contingent defences which may arise under the statutes of the United States, or under its treaties with other governments. The party justifying under such acts or treaties, must bring forward in his defence the facts necessary to make out his justification. State v. Gurney, 37 Maine, 149.

The first count in the indictment alleges the defendant to be a common seller of spirituous and intoxicating liquors, “in less quantities than the revenue laws of the United States prescribed for the importation thereof into this country.” It is insisted that this averment must be proved precisely as alleged.

The true rule on this subject is this; — if an averment may be entirely omitted without affecting the charge against the prisoner, and without detriment to the indictment, it will be regarded as surplusage. Roscoe’s Cr. Ev. 84. The averment referred to might be entirely stricken out, without in any way affecting the indictment.

The sales proved, were either in less quantities than the revenue laws of the United States prescribe for the importation of spirituous liquors, or they wore not. If in less quantities, then the indictment was proved in its precise terms. If the sales proved were of amounts larger than the least amounts which may be imported, under the revenue laws of the United States, still the indictment must be regarded as proved. In State v. Moore, 14 N. H. 455, the indictment charged the sale of a pint of rum. The witness called by the government proved a sale of one quart, and did not remember he ever bought a pint of rum. “ The rule,” remarks Mr. Justice Gilchrist, “is that it is not necessary to prove the whole of the property stated, if by the rejection of the part not proved, the offence would be complete.” 1 Ch. Cr. Law, 236. If the indictment charge the stealing of nine books of the value of ¿£9, and one book is proved to have been stolen, it would have been well enough. Ld. Ellenborough, in King v. Johnson, 3 *154 M. & S. 548. If a man be charged with stealing ten sovereigns, he .may be convicted of stealing five. Stark. Ev. 1529. If a man be charged with engrossing eight hundred quarters, he may be convicted of having engrossed seven hundred and fifty quarters. Ib. 1539. If a man be indicted for extorting twenty shillings, it will be sufficient to prove that the defendant extorted one shilling. Holt, C. J., in Rex v. Burdett, 1 Lord Ray. 149. These .are familiar principles and applicable here. Evidence of the sale of a quart .of rum, a fortiori, proves that the defendant sold ,a pint, and whether he sold the one quantity or the other, the offence is complete. In either case .the nature of the act and the quantum of punishment would be the same.

There is no evidence reported proving or tending to • prove, that the defendant was the original importer of the liquors sold, and that the sales were of imported liquors in their original packages, so as to bring the case within the principle decided in Brown v. Mayland, 12 Wheat. 419 . If there was no- such proof, the Court was not bound to give instructions as to what would have been the law upon an hypothetical case. If the defendant intended to justify under Acts of Congress, he should have presented, by proof, a case within the provisions, and then have requested such instructions as would present such questions for our consideration as he might have desired to raise. This he has failed to do, and .he therefore has no just ground of complaint.

The indictment alleges, that the defendant, at the term of this Co.urf, “ begun and holden at Portland, within and for the county of Cumberland, on the last Tuesday of Nov. 1852, was duly and legally convicted as a common seller of spirituous and intoxicating liquors, at Portland aforesaid,” &c. By the Act of March 31, 1853, c. 48, § 6, it is enacted, that “ in any suit, complaint, indictment or other proceeding against any person for the violation of any of the provisions of this Act, or that to which this is additional, other than for the first offence, it shall not be requisite to set forth *155 particularly the record of a former conviction, but it shall be sufficient to allege briefly that such person has been, convicted of a violation of any provision of this or the said Act, or as a common seller, as the case may be, and such allegation, in any civil or criminal process legally amendable in any stage of the proceedings before final judgment, may be amended without terms and as a matter of right.” The previous conviction is set forth with as much clearness and precision as the statute requires.

It is objected that the record of the former conviction, which was offered in evidence, should not have been received, because it contains no words by whieh it could be identified with the identical record of conviction set forth in the indictment. The record produced is of a conviction of the defendant of the same offence, at the same time and place, and before the same Court as is alleged in this indictment. It is difficult to perceive what more can be required within the letter or the spirit of § 6.

No motion has been made for a new trial. It does not appear that any question was made as to the identity of the defendant with the individual of the same name, in the l’ecord produced. If there was a question of identity, it was for the jury to determine. If any question of law arose at the trial, as to the sufficiency of the proof offered to show such identity, it has not been reserved and is not to be found in the exceptions before us.

The instructions requested were properly refused, and those given are not perceived to have been in any respect erroneous. Exceptions overruled,*.