State v. Whitney

The opinion of the court was delivered by Bennett, J.

We have had, at the present term of the court, an indictment before us, (State v. Munger) which was exposed to many of the objections, that are, and might be, raised to this. So far as the objections are the same, in the two cases, we need not repeat what was said in that case. We will only consider the points, wherein they differ. It is said, the omission of the auxiliary verb, did, which should have been joined with the verb, sell, (the use of which is as a helper to form the modes and tenses of other verbs) is fatal ; that without it, there is no averment that the respondent has done any illegal act. If this conclusion is to follow, most certainly the objection is well taken. In Williams et al v. Wilson et al, 1 Vt. R. 271, it was held, on special demurrer, that, in a replication, the omission of the nominative pronoun, “ they,” which should have preceded the verbs " were damnified and did pay,” was not fatal. In this indictment it is alleged, that the respondent, on the 1st day of August, A. D. 1842, at &c. sell and dispose of, &c. It is evident the omission is purely a clerical one, and the auxiliary verb may be supplied by intendment. In indictments, as well as in declarations, only the second degree of certainty is required, that is, certainty to a certain intent, in general, as it is usually expressed. 5 Coke’s Rep. 121. It was also held, that false Latin did not hurt an indictment, if by any intendment, it could be made good. Nor would it be set aside for a false concord in the grammatical construction of a sentence, the expressions being sufficiently significant to *301 make the sense appear. 5 Jac. L. D. by Tomlins, 408; Cro. Jac. 465; 5 Coke’s R. 121. The words, “ sell and dispose of,” express all the action which is imputed to the respondent, and no one can misapprehend their sense, in the connection in which they are used, and the helping verb will, at once, be supplied by intendment.

A question has been raised, as to the jurisdiction of this court.

The penalty upon a conviction in this case, is limited to ten dollars. By the Revised Statutes, p. 170, every justice of the peace is authorized to try and determine prosecutions of a criminal nature, where the punishment is by fine, not exceeding ten dollars. The words of the statute are broad enough to include the prosecution before us ; and its obvious effect would be to give the jurisdiction, in cases like this, to a justice of the , peace, unless we are satisfied, from an examination of the different provisions of the statute, that this was not the intention of the legislature. No mode is specially provided for the recovery of penalties for a breach of the license laws ; and in all cases, in which there is no special provision, the statute 496, sec. 29, provides, that the penalties maybe recovered byinformation or indictment. No indictment can be had before a justice of the peace. The penalty, in this case, goes to the county treasury. Statute, 400, sec. 25; and the costs of prosecution are to be paid out of the same treasury. Statute 467, sec. 4. By the Revised Statutes, p. 467, sec. 5 and 6, the supreme and county courts, alone, could draw orders upon the several county treasurers, and justices of the peace upon the treasurers of towns, liable for the costs of any prosecution. If, in this case, the prosecution is to be had before a justice, there is no provision in the statute for the payment of costs. It is made the duty of justices of the peace to return abstracts of all fines by them assessed, to the treasurer of the town, but they are not required to make any returns to county treasurers. And state’s attornies are under bonds to pay over to the county treasurers, all fines belonging to the same. Statute, 176-78. In the construction of statutes, the court should endeavor to give them effect according to the intention of the legislature, although it seem contrary to the letter. 6 Bac. Abr. 384. In some cases the letter of the *302 statute is restrained; in others, it is enlarged; while in others the construction is contrary to the letter, 6 Bac. Ab. 386; Zouch v. Stowell, Plow. 365. In construing a statute, it is an established rule of law, that all acts in “pari materia,” are to be taken together, as if they were one law. Ailsbury v, Pattison. Doug. R. 30. We cannot think the legislature intended to give to justices jurisdiction in such cases as this, though included in the general words of the statute.

The result is, the respondent takes nothing by his exceptions.

He was sentenced to pay to the county treasury a fine of ten dollars and costs.