Summary
■On exceptions from the superior court.
(Complaint.)
"State of Maine. Cumberland, ss. To the recorder (the judge being absent from the court room,) of our municipal court for the city of Portland, in the county of Cumberland.
"Ezra Hawkes of Portland, in said county, competent to be a witness in civil suits, on the twenty-fifth day of March, A. D. 1886, in behalf of said State, on solemn affirmation, complains 'that he believes that on the twenty-fifth day of March, in said .year, at said Portland, intoxicating liquors were, and still are kept and deposited by James Welch and Daniel Welch of Portland, in said county, in the shop and its appurtenances, situated on the northerly side of Pleasant street, in said Portland, and numbered one on said street, and occupied by said James and Daniel Welch, said James and Daniel Welch not being ■then and there authorized by law to sell said liquors within said State, and that said liquors then and there were, and now are intended by said James and Daniel Welch for sale in the State ■in violation of law, against the peace of the State and contrary :to the form of the statute in such case made and provided.
"And the said complainant, on his solemn affirmation aforesaid, further alleges and complains, that the said James Welch has ■been before convicted in the municipal court, for the city of Portland, to wit, on the fourth day of May, A. D. 1882, of unlawfully keeping and depositing in this State, in said county of ■Cumberland, intoxicating liquors, with the intent that said liquors should be sold in this State in violation of law, against the peace of the State and contrary to the form of the statute in such case made 'and provided.
" He therefore prays that due process be issued to search the premises hereinbefore mentioned, where said liquors are believed to be deposited, and if there found, that the said liquors and vessels be seized and safely kept until final action and decision be had thereon, and that said James and Daniel Welch be forthwith apprehended and held to answer to said complaint, and to do and receive such sentence as may be awarded against them.
Ezra Hawkes.
"Cumberland, ss. On this twenty-fifth day of March aforesaid, personally appeared the said Hawkes and made solemn affirmation that the above complaint, by him signed, is true.
"Before me, ' Edwin L. Dyer, Said Recorder.”
Unless the right to affirm to a complaint is conferred by statute, such affirmation is a nullity. At common law, the evidence for the king must in all cases be upon oath. Hawkins’ Pleas of the Crown, book 2, c. 46, § 29. The affirmation of a Quaker was excluded in criminal cases, by statute. 7 & 8 Will. 3 c. 34, § 6, vide Burns’Justice, 254. The existence of this rule was recognized when certain privileges of affirmation were conferred ■ by the Provincial Ordnance of December, 1758, (Ancient Charters and Laws of Massachusetts Bay,) yet by that ordnance, the right to affirm was limited, and no Quaker could sit as a juror in the trial of a criminal cause, unless he took the oath by law required.
" The word oath includes an affirmation, when affirmation is allowed.” "The words 'sworn,’ 'duly sworn,’ or 'sworn according to law,’ used in a statute, record, or certificate of administration of an oath, refer to the oath required by the Constitution, or laws in the case specified, and include every necessary subscription to such oath.” B S., c. 1, § 6. "When a person required to be sworn, is conscientiously scrupulous of taking an oath, he may affirm.” B. S., c. 1, § 7. "No warrant to search any place, or seize any person or thing, shall issue without a special designation of the place to be searched, and the person or thing to be seized; or without probable cause — supported by oath or affirmation.” Article 1, § 5, Const, of Maine.
It is settled law, that the facts essential to the exercise of special jurisdiction must affirmatively appear in such complaints. Galpin v. Page, 18 Wall. 871; U. S. v. Stoioell, 2 Curtis, C. C. 161-2. One jurisdictional averment, required in § 40, c. 27, as to the competency of the complaint, appears.
When a right of procedure is affirmatively granted by statute in a specified manner, the right to proceed in any other way is impliedly negatived. U. S. v. Moore, 3 Cranch, 170 ; JDurousseau v. IT. S. 6 Cranch, 314. And § 11, c. 132, R. S., expressly negatives any method of procedure except as specified in § 12.
If the complainant was not a person conscientiously scrupulous of taking an oath, his complaint made on affirmation would not be lawfully verified, and the magistrate could not issue his warrant. In such a case a false affirmation, willfully and corruptly made, would not subject the complainant to a prosecution for perjury, because such affirmation is not authorized by law and no conviction could follow. State v. Mace, 76 Maine, 66.
In State v. Harris, 7 N. J. L. (2 Hals.) 361, and State v. Pox, 9 N. J. L. (2 Hals.) 244, it was held that, "Where an indictment appears to be on affirmations of some of the grand jurors, it must appear that they were legally entitled to serve on these mere affirmations, or the indictment will be fatally defective.”
The word " required ” in the statute does not mean voluntary action, nor a mere verbal and unauthorized request, but it does mean, compelled by legal authority. See 2 Term Report, 1, for the meaning of the word " required ” in a statute.
The allegation of intent does not set out briefly or at length, any offence under the statutes of Maine, nor does it describe an offence under section 40, c. 27. A sufficient allegation of an intent on the part of said James Welch, to wit: that the liquors referred-to were by him intended for unlawful sale, is omitted. Such a clear averment is necessary, State v. Learned, 47 Maine, 426; State v. Miller, 48 Maine, 576, to bring the description of an offence within the statute. Nor is there any .allegation, that the conviction remains in force, or has not been ^vacated by appeal, &c.
The statute cannot override the provisions of the Constitution and make bad pleading good. State v. Mace, 76 Maine, 65 ; § 370 Bishop on Statutory Crimes, especially as to allegation of intent. Whatever is indispensably necessary to be proved, must be alleged. State v. Verrill, 54 Maine, 414; States. JPhilbrich, 31 Maine, 401.
The prayer for process is defective, because the liquors to be seized are not mentioned with certainty. " Said liquors,” may as well refer to the liquors mentioned in the allegation of a former conviction, as to any other. The word " said ” does not incorporate a previous description, that is to say, the word ” said” as used in the prayer of process, does not designate the liquors alleged to be deposited in the shop on Pleasant street. JRexv. Qheere, 4 Barn. & Cres. 902 ; 7 Dowling & Byland, 461. The place to be searched and the article to be seized should be designated with certainty when a search warrant is prayed for. The designation must be special. Art. 1, § 5, Const, of Maine; § 12, c. 132, B. S. The allegation is uncertain and the prayer defective. Jane (a slave) v. State of Missouri, 3 Mo. 61.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
