People v. J. & S. Brown

Headnote

The selling of spirituous liquors without license, is punishable as a misde. meanor under the statute upon that subject, although it contains no other prohibition than the imposition of a penalty, and a provision that all offences against the provisions of the act shall be deemed misdemeanors.

Error from the Monroe general sessions. The defendants were indicted for selling spirituous liquors without license. They demurred to the indictment, and the court of general sessions held that the matter charged did not constitute an indictable offence, and accordingly gave judgment for the defendants. The district attorney removed the record into this court by writ of error.

It was now insisted on behalf of the defendants, and in support of the judgment of the general sessions, that the statute under which the indictment was found contains no express prohibition against the sale of spirituous liquors ; it declares that “ all offences against the provisions óf this title shall be deemed misdemeanors, punishable by fine and imprisonment,” 1 R. S. 682, § 25; and if it should be admitted that from such declaration a prohibition might be implied, it would not help the prosecution, as it is a well settled rule of law that penal statutes are to be construed strictly; that nothing can be taken by implication against individual rights, and especially that the offence cannot be created by construction or implication. 1 Black. Comm. 88, and notes 25 & 26 by Chitty. 5 Cowen, 210. 2 id. 419. It was admitted that where an act is not an offence at common law, but is made so by statute, that an indictment will lie, where there is a substantive prohibitory clause, but that it is otherwise where the statute is not prohibitory, and only inflicts a forfeiture for the doing of a specified act, and provides for the remedy. Rex v. Wright, 1 Burr. 546, 7. 2 Hale’s P. C. 171. The statute here imposes a penalty of twenty-five dollars, and provides a remedy for its recovery, 1 R. S. 680, § 15, 16. The counsel

admitted that, in The People v. Stevens, 13 Wendell, 341, it was decided that an indictment did lay in a case like the present, but it was urged that it did not appear from that case that the point now presented for consideration was discussed by counsel, or considered by the court.