author: By the Court, Davies, J.

text:
    Supreme Court. New-York General Term,
    December, 1857.

      Mitchell, Clerke and Davies, Justices.
    The People v. David S. Page.
    The provision of section sixteen of the “ act to suppress intemperance, and regulate the sale of intoxicating liquors,” passed April 16, 1857 {Laws of 1857, ch. 628), by which the sum of one hundred dollars is prescribed as the penalty of the bond to be taken where a person is arrested and brought before a magistrate, charged with being found actually engaged in violating that act, is not applicable to the case of a person indicted under the twenty-first section of that act, and afterwards arrested under the indictment. In the latter case the amount of bail is not fixed by statute, but is left to the discretion of the magistrate.
    The twenty-first section of the act, which declares it a misdemeanor for an inn, tavern or hotel keeper or person licensed to sell liquors, to sell or give away any intoxicating liquors or wines on Sunday, is not applicable to persons other than those thus designated; and it is not, therefore, an indictable offence, under the statute, to sell or give away intoxicating liquors or wines on Sunday, when the act is done by a person who is not licensed to sell liquors, or who is not the keeper of an inn, tavern or hotel.
    For the selling of such liquors on Sunday, by persons not enumerated in the twenty-first section, the only punishment is the infliction of a money penalty provided for selling without a license by other sections of the act, and there is no distinction in the kind of punishment, whether the sale be made on Sunday or on any other' day of the week.
    It is no valid objection to an indictment for a violation of the twenty-first section of the act, that the defendant had not been first arrested and taken before a magistrate.
    Form of an affidavit for the allowance of a writ of certiorari to remove into the Supreme Court, for review, a decision made on habeas corpus under 2 Revised Statutes {p. 573, § 69); also, form of such writ and return thereto, including proceedings on habeas corpus and certiora/ri to certify cause of detention.
    This cause came before this court on certiorari to review the proceedings had before the recorder of New-York, on habeas corpus.

    The affidavit for the allowance of the writ of certiorari was as follows :

      City and County of New-York, ss:

      A. Oakey Hall, district attorney of the city and county of New-York, being duly sworn, deposeth and saith: That, on or about the fifth day of September, instant, a writ of habeas corpus was issued out of the Supreme Court, allowed by, and returnable before the Honorable James M. Smith, Jr., one of the justices of the Court of General Sessions, for the relief of one David S. Page, for the cause of the detention of the said David S. Page, to which a return was made, and a traverse interposed thereto; that a writ of certiorari was also issued, and allowed, and returnable before the said justice. That, on said returns, deponent was heard before said justice, and on the tenth day of September, instant, an order was made by said justice, and under said order the said David S. Page, the party named therein, was discharged from custody, and a final adjudication was thereupon made by said justice; and further saith not.
    A. Oakey Hall,

    C. A. Peabody.
    The writ issued thereon was as follows:
    The People of the State of New-York, to the Honorable James M. Smith, Jr., one of the justices of the Court of General Sessions, greeting:
    Whereas, we have been informed, by the official affidavit of the district attorney of the city and county of New-York, that writs of habeas corpus and certiorari were severally heretofore issued by you, under your hand and seal, on behalf of one David S. Page, directed, the said writ of habeas corpus to the warden of the city prison in the county of New-York, and the said writ of certiorari to the district attorney of the city and county of Hew-York; and the said writ of habeas corpus requiring the said warden to have the body of the said David S. Page before you, the said justice, to be dealt with according to law; and the said writ of certiorari requiring the said district attorney to certify to you, the said justice, the papers containing the cause of his imprisonment.
    And whereas, pursuant to the requirements of the said several writs, the body of the said David S. Page, and the papers of his examination, were brought before you; and whereas such returns were made upon the said several writs, that thereupon you proceeded to hear and determiné the said several writs; and whereas such proceedings were had upon the said several writs and several returns, that you, the said justice, did order, adjudge and determine, that the said David S. Page should be discharged from the custody or restraint of the said warden of the city prison; and we being willing to be certified of such proceedings as were had before you, do command and strictly enjoin you, that you do certify and return those proceedings, with all things, papers and schedules thereto appertaining, unto our justices of our Supreme Court, at the city hall in the city of New-York, on the second Monday of September, instant, at the general term of said court, under your hand, as fully and amply as the same remain before you, so that our said justices may further cause to be done thereupon what of right and according to law ought to be done, and have you then and there this writ.
    Witness, Honorable Charles A. Peabody, one of the justices of our said court, at the city hall in the city of New-York, the tenth day of September, in the year of our Lord, one thousand eight hundred and fifty-seven.
    By the court,
    Richard B. Connolly, Clerk.

    Allowed September 10, 1857.
    C. A. Peabody.
    The following return was made by the recorder:
    I, James M. Smith, Jr., one of the justices of the Court of General Sessions of the peace of the county of New-York, in obedience to the annexed writ, do return as follows in the annexed schedule.
    James M. Smith, Jr.
    September 11, 1857.
    To the Honorable James M. Smith, recorder of the city of New-York :
    The petition of D. P. McBrien shows that David S. Page is now a prisoner restrained of his liberty, in the custody of John A. Gray, Esq., keeper of the city prison, and that he is not committed or detained by virtue of any process issued by any court of the United States, or by any judge thereof; nor is he committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment- or decree; that the cause or pretence of such imprisonment or detention, according to the best of the knowledge and belief of your petitioner, is, that he was committed by Justice Connolly for an alleged violation of an act to suppress intemperance and to regulate the sale of intoxicating liquors, passed April sixteenth, one thousand eight hundred and fifty-seven, by the senate and assembly of the State of New-York, a copy of which commitment- is hereto annexed, marked A.
    The said petitioner has also been indicted upon said charge, wherefore your petitioner prays that a writ of habeas corpus and certiorari issue, directed to John A. Gray, keeper of the city prison, and the district attorney and clerk of the Court of Sessions, commanding him to bring the body of your petitioner before your honor, to do and receive what shall then and there be evidence concerning him.
    D. P. McBrien.
    Dated 4th day of September, 1857.

      City and County of New-York, ss:

      D. P. McBrien, being duly sworn, doth depose and say, that the facts set forth in the above petition subscribed by him are true.
    D. P. McBrien.

    Horace Andrews, Commissioner of Deeds.

    The People of the State of New-York, to John A. Gray, [ l. s. ] Greeting:

    We command you that you have the body of David S. Page, by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name he shall be called or charged, before Hon. James M. Smith, Recorder of the city of New-York, at his chambers, number twenty Chambers-street, in the said city of New-York, on the fourth day of September, one thousand eight hundred and fifty-seven, at three o’clock, P. M., of that day, to do and receive what shall then and there be considered concerning him, and have you then there this writ.
    Witness, James J. Roosevelt, Justice Supreme Court, the fourth day of September, one thousand eight hundred and fifty-seven.
    By the court,
    R. B. Connodly, Clerk.

    D. B. Taylor, Attorney,

    (Indorsed.)
    Allowed.
    James M. Smith, Jr., Recorder.

    I return that I hold the within named prisoner by virtue of the annexed commitment.
    John A. Gray, Warden.

      City and County of New-York, ss:

    By Michael Connolly, Esq., one of the police justices in and for the city of New-York, to the constables and policemen of the said city, and every of them, and to the keeper of the city prison of the said city:
    These are, in the name of the People of the State of New-York, to command you, the said constables and policemen, and every of you, to convey to the said prison the body of David S. Page, and deliver him to the keeper thereof; and you, the said keeper, are hereby commanded to receive into your custody, in the said prison, the body of the said David S. Page, who stands indicted by the grand jury of the city and county of New-York for misdemeanor, to wit, selling liquor on Sunday, and that you safely keep the said David S. Page in your custody, in the said prison, until he shall find surety in the sum of two hundred dollars, to answer said complaint, or be thence delivered by due course of law.
    Given under my hand and seal this fourth day of Sep[l. s.] tember, one thousand eight hundred and fifty-seven.
    Michael Connolly,

      Police Justice.

      Certiorari to certify cause of detention:

    The People of the State of New-York, to the district attor- , ney of the city of New-York, and the clerk of the Court of General Sessions, Greeting:

    We command you that you certify fully and at large to Hon. James M. Smith, recorder of the city and county of New-York, at his chambers, Number twenty Chambers-street, on the fourth day of September, one thousand eight hundred and fifty-seven, at four o’clock, P. M., the day and cause of the imprisonment of David S. Page, by you detained, as is said, by whatsoever name the said David S. Page shall be called or charged ; and have you then there this writ.
    Witness, James J. Roosevelt, Justice of the Supreme Court, the fourth day of September, one thousand eight hundred and fifty-seven.
    By the court,
    Richard B. Connolly, Cleric.

    D. B. Taylor, Attorney.

    (Indorsed.)
    Allowed.
    James M. Smith, Jr., Recorder.

    I return to this writ of certiorari that the cause of imprisonment of the said David S. Page is an indictment hereto annexed in my custody, for the trial thereof, by the rules of, the Court of General Sessions, wherein it was found and filed.
    A. Oakey Hall,

      District Attorney.

    September 5, 1857.

      City and County of New-York, ss:

    The jurors of the people of the state of New-York, in and for the body of the city and county of New-York, upon their oath, present: That David S. Page, late of the eighth ward of the city of New-York, in the county of New-York, aforesaid, on Sunday, the ninth day of August, in the year of our Lord one thousand eight hundred and fifty-seven, did, willfully, unlawfully and maliciously, sell to divers citizens of this state, and to divers persons to the jurors unknown, and did cause to be sold to divers citizens of this state, and to divers persons to the jurors unknown, at the ward, city and county aforesaid, on the Sunday aforesaid, intoxicating liquors, to wit, one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whiskey, one pint of lager bier, and one pint of cordial, as a beverage, in contempt of the people of the State of New-York, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York and their dignity. /
    And the jurors aforesaid, upon their oath aforesaid, do further present: That afterwards, to wit, on Sunday, the ninth day of August, in the year of our Lord one thousand eight hundred and fifty-seven, the said David S. Page, did, willfully and unlawfully give away to divers citizens of this state, and to divers persons to the jurors unknown, at the ward, city and county aforesaid, on the said Sunday, intoxicating liquors, to wit, one pint of wine, one pint of brandy, one pint of gin, one pint of rum, one pint of whiskey, one pint of lager bier and one pint of cordial, as a beverage, against the form of the statute in such case made and provided, and against the peace of the people of the State of New-York, and their dignity.
    A. Oakey Hall,

      District Attorney.

    BEFORE THE RECORDER AT CHAMBERS.

    The defendant, by his attorney, traverses and denies the return, and the sufficiency in law thereof; and further denies that the indictment is sufficient cause for his detention and imprisonment, and denies that the indictment is in the custody of the district attorney by the rules of the Court of General Sessions; and the defendant further, alleges, that the indictment is void on its face, in this, that it does not charge or describe against the defendant any offence; and the defendant further alleges, that the indictment has been obtained surreptitiously, and against the provisions of the Code, entitled, “An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April sixteenth, one thousand eight hundred fifty-seven; and the defendant further alleges, that no complaint was made against him before any magistrate, and that he was not arrested or brought before any magistrate charged with the violation of any of the sections of the aforesaid act, as required by the sixteenth section thereof; and defendant alleges, that he has had no opportunity to elect to be tried before a magistrate as provided in the sixteenth section of said act and the defendant further alleges, that in violation of the provisions of said act, he has been illegally arrested, and deprived of his liberty without notice, and without opportunity to give the bail of one hundred dollars, as provided by the sixteenth section of said act, but has been required to give bail in the sum of two hundred dollars, contrary to the provisions of said act.
    D. B. Taylor,

      Attorney.

      City and County of New-Yorlc, ss.

    D. S. Page, the defendant, being duly sworn, says: that the facts set forth in the foregoing answer are true, to the best of his knowledge, information and belief.
    D. S. Page.

    Wm. G-. McLaughlin,

      Commissioner of Deeds.

    I order the discharge of the defendant from custody, upon the ground that the commitment is irregular.
    James M. Smith, Jr.,

      Recorder.

    September 10th, 1857.

      On making the decision, the following opinion was delivered by the recorder:

    On the fourth instant, application was made to me for a writ of habeas corpus and certiorari. By the return to the writ of habeas corpus, it, appeared that the defendant was in custody, in default of bail, in the sum of two hundred dollars, upon a commitment issued by Justice Connolly, which commitment was predicated upon an indictment for an alleged misdemeanor, the charge being for selling liquor on Sunday. On the return to the certiorari, it appeared that the indictment was filed on the eleventh of August. The indictment was returned as the cause of the commitment. It does not allege that the defendant was licensed to sell as an inn, tavern or hotel-keeper.
    The traverse of the defendant to the return on the writ of certiorari, is as follows: “ The defendant, by his attorney, traverses and denies the return, and the sufficiency in law thereof, and further denies that the indictment is sufficient cause for his detention and imprisonment, and denies that the indictment is in the custody of the district attorney by the rules of the Court of General Sessions. And the defendant further alleges that the indictment is void on its face, in this, that it is does not charge or describe against the defendant any offence. And the defendant further alleges, that the indictment has been surreptitiously obtained and against the provisions of the act, entitled ‘An act to suppress intemperance, and to regulate the sale of intoxicating liquors,’ passed April sixteen, one thousand eight hundred and fifty-seven. And the defendant further alleges, that no complaint was made against him before any magistrate, and that he was not arrested and brought before any magistrate, charged with the violation of any of the sections of the aforesaid act, as required by the sixteenth section' thereof. And the defendant further alleges, that he has had no opportunity to elect to be tried before a magistrate, as provided by the sixteenth section of said act. And the defendant further alleges, that, in violation of the provisions of said act, he has been illegally arrested and deprived of his liberty, without notice, and without opportunity to give the bail of one hundred dollars, as provided by the sixteenth section of said act, but has been required to give bail in the sum of two hundred dollars, contrary to the provisions of said act.”
    To this traverse the district attorney demurred, on the ground that there are no facts stated therein which would warrant the discharge of the defendant. The legal effect of this demurrer is, to admit the allegations of fact as set forth in said demurrer.
    The facts, therefore, upon which I am to pass in this case are as follows: On the 11th day of August, 1857, an indictment was filed in the Court of General Sessions, charging the defendant with a misdemeanor in selling liquor on Sunday, the ninth of August, contrary to the statute; that such indictment was found without a preliminary complaint before a magistrate and the arrest of the defendant as provided in section sixteen of the act; that the defendant was held to bail in the sum of $200 ; that he was in custody by virtue of a commitment predicated upon the indictment, in default of giving bail in that amount. It was also conceded by the respective counsel that the defendant had not obtained- a license to sell liquor as an inn, tavern, or hotel keeper.
    The district attorney moved to discharge the writ, on the ground that the indictment was a record imputingverity upon its face, and that it could not be inquired into or impeached collaterally.
    It is not necessary, in order to secure to the defendant his rights under the writ of habeas corpus or certiorari, that this proposition should be controverted. It is made the duty of the officer before whom a party is brought upon the writ to examine into the facts contained in the return, and into the cause for the confinement or restraint of the party; and, upon such examination, it is his duty to remand, or to discharge, or bail, in his discretion, if the offence be bailable. He may, in his discretion, discharge the defendant on nominal bail, or he may discharge defendant on his own recognizance. The object of the hearing is, to place the officer in possession! of the facts, that he may judiciously exercise his discretion. Therefore, although the indictment cannot be discharged by the judge at chambers, still if, upon hearing, he comes to the conclusion that the allegations in the indictment do not constitute an offence in law, it is his duty to exercise bis discretion upon the question of bail to its fullest extent.
    The' questions at issue in this case are important ones. Many indictments which were found, at the last term of the court, under similar circumstances, are still pending in the Court of General Sessions, the legal questions upon which are the same as are involved in this.
    The indictment is found under the twenty-first section of the act entitled “An act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April 16, 1857. This section is as follows:
    • “No inn, tavern or hotel keepers, or persons licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, or upon any day upon which a general or special election or town meeting shall be held, and within one quarter of a mile from the place where such general or special election or town meetings shall be held in any of the villages, cities or towns of this state, to any person whatever, as a beverage. In case the election or town meeting shall not be general throughout the state, the provisions of this section, in such case, shall only apply to the city, county, village or towns in which such election or town meeting shall be held. Whoever shall offend against the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction shall be imprisoned in a county-jail, workhouse or penitentiary not more than twenty days.”
    It is a principle well settled-that all penal statutes must be construed strictly; that nothing can be taken by implication against the party to be affected by them. Under the denomination of penal statutes, within this rule, are included “ statutes which give a summary remedy; those made in derogation of the common law; statutes which impose restrictions upon trade or common occupations, or which levy an excise tax on the citizen.” At common law it is not an offence to sell liquor, “ and in the construction of statutes made in derogation of common right, care should be taken not to extend them beyond the express words of their clear import.” It was conceded before me on the argument that the defendant was not the keeper of an inn, tavern or hotel, or licensed to sell liquors. The twenty-first section applies to such persons and such persons only. Courts have not the power to correct defective legislation. Their duty is to administer the law as they find it, and where it is ambiguous to interpret it by certain recognized rules and principles.
    In order to make the twenty-first section applicable to the indictment, it would be necessary for the court to add to it the words, “ or any other person.” As the section now stands, those only who are licensed to sell incur the penalty of misdemeanor for selling on Sunday. This may not have been the intention of the legislature, but it is the letter of the law. In remedial statutes, courts may give a liberal and extended meaning in order to cony the intention of the legislature into effect; but the reverse is the rule in the construction of penal statutes. The act under consideration is highly penal, and it points out specifically certain penalties for different offences committed under it. Section thirteen declares that “ whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time without having a license therefor, granted as herein provided, shall forfeit $50 for each offence.”
    It cannot be contended that for a violation of that section a party can be legally indicted. This section applies to all who are not licensed who sell in quantities less than five gallons, and supersedes all other statutes upon that question.
    The fourteenth section prescribes the penalty for selling without an inn, tavern or hotel keeper’s license, and declares that: “ Whoever shall sell any strong or spirituous liquors or wines, to be drank in his house or shop, or any out-house, yard or garden appertaining thereto, or shall suffer or permit any such liquors or wines sold by him or under his direction or authority, to be drank in his house or shop, or in any outhouse, yard or garden thereto belonging, without having obtained a license therefor as an inn, tavern or hotel-keeper shall forfeit $50 for each offence.”
    Under this section also, there is a specific penalty; but the offence is not declared a misdemeanor, and therefore is not indictable. In the fifteenth section the language is different, and the violation of part of that section is expressly declared to be a misdemeanor, and the penalty is prescribed.
    The sixteenth section points out the manner in which offences under the act shall be brought to justice. This section is plain and specific in its directions. It makes it the duty of every sheriff, under sheriff, deputy sheriff, constable, marshal, policeman or officer of police, to arrest all persons actually engaged in violation of the provisions of the act, and forthwith to carry such persons before any magistrate, to be dealt with according to the provisions of the act. It points out the duty of the magistrate. It gives the parties charged the privilege of being tried before the magistrate, or giving bail to appear at the Sessions or Oyer and Terminer.- It fixes the amount of bail at $100. It directs the magistrate in all cases to entertain the complaint, and to transmit the affidavits, &c., taken before him, to the district attorney, and the district attorney is directed to prosecute the offender.
    The twenty-ninth section makes it the duty of courts to instruct grand jurors to inquire into all offences against the provisions of the act, and to present all offenders tinder it. By the act of 1855, the Special Sessions of the city and county of New-York, have exclusive jurisdiction in all cases of misdemeanors, unless the defendant elects to be tried by the General Sessions. That act is still in force. The fact that the grand jury are directed to present all offenders under the excise law does not conflict in any manner with the act of 1855, above referred to. It means no more nor less than that they are to entertain all complaints legally prosecuted, and present all offenders legally charged. I have, in all cases since the passage of the act of 1855, called the attention of the grand juries to its provisions, and instructed them that they had no right to entertain complaints in cases of misdemeanors, unless preliminary proceedings had been taken before a magistrate. I so instructed them at the time when this indictment was found. I so decided in the case of The People v. Edgar and others; and had a motion in this case been made before me to quash this indictment when the same was. presented, I should have granted it upon the ground that it was illegally found, the defendant having been denied a substantial right guaranteed to him by the statute.
    It was suggested on the hearing that the violation of a penal statute was made a misdemeanor; that is so in all cases where the statute does not prescribe the penalty of the offence, but in those cases only. Under the act in question, the penalty is prefixed specifically in all cases; •therefore this general provision of the statute does not apply.
    The only penalty for selling liquor without a license to be drunk on the premises, &c., either on a Sunday or on a week day, is prescribed in the thirteenth section. That sectian does not declare the sale to be a misdemeanor, therefore it is not an indictable offence, though the penalty is severe. The twenty-first section expressly declares it to be a misdemeanor to sell in violation of that section. The remedy to punish the party violating section fourteen, is by an action for the penalty brought by the board of commissioners of excise.
    Entertaining these views as to the act under consideration, I should consider it my duty to discharge the defendant upon his own recognizance, if the commitment was regular. But this commitment is illegal. By the commitment- it appears . that the defendant is in custody in default of bail in the sum of $200. The statute fixes the bail at $100.
    I therefore order that the defendant be discharged from custody by reason of the irregularity of the commitment. If, upon any collateral hearing, the question as to the validity ofi the indictment could be entertained, I should not hesitate to discharge the defendant upon the ground that the offence charged was not indictable under the act.
    A. Oakey Hall (District Attorney), for the people.

      D. B. Taylor, for the defendant.
   By the Court, Davies, J.

On the 11th of August, 1857, David S. Page was indicted by the grand jury of the city and county of New-York, for a violation of the provisions of section twenty-one of chapter six hundred and twenty-eight of the Laws of one thousand eight hundred and fifty-seven.

This section declares that no inn, tavern or hotel keeper, or person licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday, and that whoever offends against the provisions of that section shall be guilty of a misdemeanor, and on conviction shall be imprisoned in the county jail, work-house or penitentiary not more than twenty days. On this indictment being found, a warrant was issued by one of the police justices directing the arrest and confinement of the defendant in the city prison, in default of his giving bail in the sum of $200. The defendant applied to the recorder for a writ of habeas corpus, for the purpose of inquiring into the cause of his detention; and, on the return, he was discharged from custody by the recorder. These proceedings have been removed into this court under 2 Revised Statutes (p. 573, § 69), which authorizes these proceedings to be removed into this court “ to be there examined and corrected.”

It was objected that the commitment by the magistrate was irregular, in that he held the defendant to bail in the sum of $200, whereas, by the sixteenth section of this act, the magistrate could only hold to bail in the sum of $100.

It will be seen, we think, by a reference to that section, that its provisions do not apply to a case of indictment found. They make it the duty of any sheriff, under sheriff, deputy sheriff, constable, marshal, policeman, or other officer of police, to arrest all persons found actually engaged in the violation of the provisions of that act, and forthwith to carry such offender before any magistrate, whose duty it is, on due proof of such offence, to require a bond to be executed by such offender, in the penal sum of $100, conditioned that he will appear and answer the charge at the next Court of Oyer and Terminer, or Sessions, and abide the order and judgment of the court thereon, or, in default of such bond, to commit the offender to the county jail until such judgment of said court, or until he be discharged according to law. By said section it is also made the duty of any magistrate to entertain any complaint for a violation of that act, and forthwith issue a warrant and cause such offender to be brought before him to comply with the provisions of that section. We think, therefore, that the action of the magistrate, in the first instance, is to be invoked when the offender is found actually engaged in the commission of the offence 5 in such case the magistrate is to take security in the penal sum of $100, or, in default, commit the offender; and in the next place, on complaint made to him, to issue a warrant and cause the offender to be brought before him, and when so brought to proceed in the same manner as if such offender had been actually found engaged in the commission of the offence.

The case now under consideration is different from these, and consequently the provisions of this section are inapplicable to it. The defendant has been indicted by the grand jury, and arrested by a police justice to answer such indictment, and it follows that he has full authority to fix the amount of bail, and in default of giving it, to commit the defendant. We find no provision in the act restricting the amount of bail to be taken from a defendant arrested after indictment, and for the reason stated the limitation prescribed in section sixteen we deem inapplicable to this case. It follows, therefore, that there was no irregularity in the commitment.

If the commitment was irregular, it became the duty of the officer before the matter was heard to hold the defendant to bail, if it should appear that the party has been legally committed for any criminal offence. The recorder, therefore, properly proceeded to inquire whether the indictment charged any criminal offence against the defendant, and being of the opinion that it did not, he discharged the defendant. The inquiry is thereupon presented, whether any offence, upon the facts stated in the indictment, has been committed by the defendant. The indictment charged that the defendant, on Sunday, the ninth of August last, sold to divers persons liquor, contrary to the form of the statute, and on the same day did give liquor to divers persons, also against the form of the statute. The twenty-first section of the act of April 15, 1857, is relied on to sustain this indictment. It provides that no inn, tavern or hotel keeper, or person licensed to sell liquor, shall sell or give away any intoxicating liquors or wines on Sunday, and that “ Whoever shall offend against the provisions of this section shall be guilty of a misdemeanor.” The persons prohibited from selling or giving away liquors on Sunday are, inn, tavern or hotel keepers, or persons licensed to sell liquors. They are the persons prohibited; it is not the selling or giving away liquor on Sunday which is declared to be illegal, but the selling or giving it away by an inn, tavern or. hotel keeper, or person licensed to sell liquors. It is only this class of persons who are enjoined from doing this; and the word “ whoever,” used in this section, must have relation to these enumerated persons. Whoever offends against the provisions of that section is guilty of the offence; the persons who can offend against these provisions are, inn, tavern or hotel keepers, or persons licensed to sell liquors. If they offend they are guilty of the misdemeanor, and therefore it is vital, to establish the crime, that the person charged should be one of those prohibited by the section. Such proof being necessary to convict, it follows that it must be averred in the indictment to constitute the offence. The selling or giving away liquor by this defendant on Sunday, he not being, or averred to be, an inn, tavern or hotel keeper, or person licensed to sell liquor, constitutes no offence against this section of the statute, and is not therefore unlawful. Other sections of this statute prohibit the sale of liquors, without a license, under a penalty of $50 (§ 13), and a like penalty is imposed by section fourteen on any person who shall sell liquor to be drank on his premises, or permit liquor sold by him to be drank on his premises, without having obtained a license therefor as an inn, tavern or hotel keeper. Offences against these sections are punishable by the infliction of a money penalty, and have no application or bearing on this case. We are therefore of the opinion that the facts stated in the indictment do not show that the defendant has committed any offence against the provisions of this act, and "that the defendant was properly discharged.

Another point was taken on the argument, that the defendant could not legally be indicted by the grand jury, without first having been taken before a magistrate. In this we think the counsel for the defendant is mistaken. We have already seen in what case and for what purpose a person offending may be taken before a magistrate. There is no doubt that an offender may be taken before a magistrate in the first instance, who, if satisfied the offence has been committed, is bound to detain the offender in default of bail. But we think the injunctions of section twenty-nine contemplate something in addition, to insure the due execution of this law. By this section it is made the duty of all courts, in which grand juries are summoned, to instruct them to inquire into all offences against the provisions of that act, and to present all offenders under this act. We do not think the legislature meant by this to impose, this duty upon the courts and grand jurors, merely for the purpose of instituting an inquiry and informing the court who had violated the law. On the contrary, we think the language used contemplated an inquiry by the grand jury into all offences committed against the provisions of this act, and if on inquiry they shall ascertain such offences have been committed, they are to present all such offenders to the court by indictment. This is the usual, well known and long established manner of presenting offenders to the court by grand jurors. The oath taken by any grand juror embodies this idea. He is well and truly to inquire and true presentment make of all matters given him in charge, to present no man through fear, favor, &c., or to leave any man unpresented through affection or hope of reward, but to present all things truly as the same shall come to his knowledge. The grand jury present all offenders to-the county by indictment; and we think it clear that the legislature intended, if the grand jury should find on inquiry that offences had been committed against this statute, the offenders were to be presented to the court by indictment. Any other presentment of offenders would be unmeaning and ineffectual, and would serve no other purpose than that of giving notice to the party accused of the charge preferred, and affording him an opportunity of escape. No principle applicable to the construction of statutes with which we are acquainted would authorize us to sanction a construction which would so effectually prevent the punishment of offenders against its provisions.

The writing which contains the accusation of the grand jury is called a presentment. (2 Bouv. L. Dict., 372.)

It is made the duty of the grand jury to inquire into all offences against the provisions of this act. If the act had stopped here, and not added what they should do thereafter, there can be no doubt, we think, that they would equally have been bound to present by indictment all offenders against the act. A reference to similar provisions in our statutes will show that such is the uniform construction which has been given to them, and offenders against which have been presented by indictment. By section fifteen of title seven, part one, chapter six of the Revised Statutes, it is made the duty of the presiding judge of any Court of Oyer and Terminer, or Sessions, within this state, specially to charge the grand jury, at each term of the court, to take notice of all offences committed in violation of any of the provisions of that act. So also by section fifty-four (1. R. S., 672) it is declared to be the duty of such presiding judge of said courts specially to charge any grand jury to inquire into all violations of the laws against lotteries. So also by section sixteen (1 R. S., 773) it is made the duty of all courts of justice to charge the grand jury specially to inquire into any violations of the provisions of that act, the statute against usury. It is also made the duty of any court, to which a grand jury shall be summoned, to charge such jury specially to inquire into any violation of law by public officers, in taking fees to which they are not entitled by law (Laws of 1847, ch. 455, § 17.)

For what purpose, but for the grand jury to present offenders by indictment, is it made the duty of the courts to require them to make their inquiries? It has certainly always been understood, that grand juries have been instituted for the sole purpose of detecting crime, and insuring its punishment, and that the mandate of the statute upon the courts and grand juries to institute these investigations, carried with it the obligation, upon the latter, to indict in all cases where it was proved offences had been committed. We think therefore, that it is the duty of the courts to charge the grand juries to inquire into all offences against this act, and if they find any such to have been committed the grand jury is bound to present the offender by indictment, to the end that such punishment may be awarded as the law demands.

The order of the recorder in this case is affirmed.

Order affirmed.


source: Caselaw Access Project

author: By the Court, Balcom, J. Mason, J. Gray, J.,

license: Public Domain

text:
    Supreme Court. Broome General Term,
    January, 1858.

      Gray, Mason and Balcom Justices.
    Charles B. Goodrich, plaintiff in error v. The People, defendants in error.
    Where an inidctment for selling unwholesome beef charged that the defendant sold the beef in question to divers citizens “ as good and wholesome beef and food.” it was held to be a sufficient averment that it was sold to such citizens, to be eaten by them. Mason J., dissenting.
    And it is no defect in such an indictment that the persons are not named to whom the beef was sold, if it is alleged in the indictment that such persons were 11 to the jurors unknown.”
    Nor is it necessary to allege in such an indictment that the defendant intended to injure the health of the persons who ate the beef, or that it did injure their health.
    What is a sufficient averment of time and place in such an indictment.
    To sustain an indictment for this offence, against a person who had owned a diseased cow and had slaughtered her and sold her for food, it is enough to prove that the disease was known to the defendant and that the nature and tendency of the disease was such as to taint and affect the flesh of the entire animal so as to make it unwholesome in any.degree, although the taint was imperceptible to the senses and although the eating of the flesh produced no apparent injury to those who ate it.
    On the trial of such an indictment, it is competent to prove what was said to the defendant before he sold the beef, by a third person, on the subject of the unwholesomeness of the beef for food, though no response was made by the defendant, such evidence being proper on the question whether the defendant knew or believed that the meat was bad when he disposed of it.
    It is proper on such a trial to prove by physicians that the eating of diseased and unwholesome meats does not always cause apparent sickness and also for physicians to give their opinion of the nature of the disease of which the cow died, founded on the descriptions which other witnesses had given of the ulcerated condition of the animal and also to state whether, in their opinion, the disease would cause fever, and whether the flesh of animals laboring under a fever is unwholesome for food.
    Writ of error to the Tioga sessions, to remove into this court an indictment against the defendant and the record of his conviction thereon for selling unwholesome beef.
    The indictment was found in the Oyer and Terminer, and was sent to the Sessions for the trial of the defendant thereon; and it was in the words following, to wit:

      Court of Oyer and Terminer in and for the county of Tioga :

    At a Court of Oyer and Terminer held in and for the county of Tioga, at the court house in the village of Owego, on the third Monday of February in the year of our Lord one thousand eight hundred and fifty-seven.
    Present, Hon. Hiram Gray, a justice of the Supreme Court presiding judge of the said Court of Oyer and Terminer ; Hon. Stephen Strong, county judge of the said county, and John L. Howell and Nathaniel F. Moore justices of the peace in and for the county of Tioga, duly designated as members of the Court of Sessions in and for the said county of Tioga.
    The jurors of the people of the state of New-York, in and for the body of the county of Tioga, to wit: [ the names of twenty-three jurors were here given] good and lawful men of the county of Tioga then and there being duly sworn and charged to inquire for the people of the state of New-York, in and for the body of the county of Tioga upon their oath.

      Tioga, County, ss.:

    The jurors of the people of the state of New-York, in and for the body of the county of Tioga, upon their oath aforesaid, do present, that Charles B. Goodrich, late of the town of-, on the twentieth day of December, in the year of our Lord one thousand eight hundred and fifty-six, at the town of Owego in said county, knowingly, willfully, deceitfully and maliciously, did expose to sale and did sell to divers citizens of the state of New-York, to the jurors aforesaid unknown, divers, to wit: five hundred pounds of beef as good and wholesome beef and food, and then and there delivered said beef to the said divers citizens aforesaid: whereas in truth and in fact the said beef was not good and wholesome beef and food, but on the contrary thereof was unwholesome and diseased, and unfit for food, and not fit to be eaten by man, he, the said Charles B. Goodrich, then and there well knowing the said beef to be diseased and unwholesome and not fit to be eaten as aforesaid, against the peace of the people of the state of New-York and their laws and their dignity, and against the form of the statute in such case made and provided.
    B. F. Tract,

      District Attorney.

    The following objections were raised to the indictment, on the trial, and by motion in arrest of judgment, by the defendant’s counsel: First. That there was no evil intent alleged in it. Secondly. That the words “ then and there ” were omitted before the words “ good and wholesome beef fit for food,” and that the words “ then and there ” were omitted before the words “unwholesome and diseased and unfit for food and not fit to be eaten by man ; ’*and that the words “ then and there ” were omitted in another part of the indictment before the words “ diseased and unwholesome and not fit to be eaten.” Thirdly. That there was no allegation in the indictment that the beef was sold for food and with the intent that it should be eaten. Fourthly. That the general allegation that it was sold to divers citizens of the state, &c., was not sufficiently definite and certain. Fifthly. That there was no allegation in the indictment that the beef had been used as food by man and produced injurious effects and proved unwholesome; or that if it had been used for food it would have been likely to have produced injurious effects.
    The Court of Sessions overruled the objections and held the indictment good, and refused to discharge the defendant without a trial, and refused to arrest the judgment after the jury had found the defendant guilty. The defendant by his counsel duly excepted to the decisions of the court.
    It was proved upon the trial that the defendant had a cow which was troubled with a large filthy sore on her head, in and about one eye; that he killed her, and sold the meat to different persons in Owego; but there was no evidence given that the meat made any of the persons apparently sick who ate of it. When the cow was slaughtered the sore was from four to six inches in length, and as the cow fell down the eye burst open and the sore discharged so much and such foul matter that it made a man, who was assisting the defendant in dressing the cow, “ sick at the stomach.” The defendant had “ doctored ” the sore for several months before he killed the cow and it grew worse all the time, and there was evidence that she had lost flesh by reason of the sore.
    A witness for the people was permitted to testify that just before the cow was killed by the defendant or soon afterwards, and before the defendant sold the beef, he heard the defendant’s wife say to the defendant “ that she would not like to cook any of the meat in the house, if she did she would not like to eat it; she would think of the eye when she ate it; that she did not know but the meat was just as good as any.” The witness said he did not know that the defendant said any thing in reply to what his wife said.
    The evidence of what the defendant’s wife said was objected to, and each and every part thereof, by the defendant’s counsel, as immaterial and irrelevant, and that the defendant was not bound by her declarations. The court overruled the objection, and the defendant’s counsel excepted to the decision.
    The district attorney put to two physicians the following question, viz.: “Does the fact that the meat was eaten with apparent impunity, and no obvious ill effects produced, prove that it was not unwholesome food ? ”
    The question was objected to by the defendant’s counsel on several grounds, but the court overruled them and permitted the physicians to answer the question, ánd the defendant’s counsel excepted.
    Their answers were: First. “The fact that the meat was eaten with apparent impunity, and no obvious ill effects produced, does not prove that it was not unwholesome food;” Second. “ The fact that unwholesome food is sometimes eaten with impunity does not necessarily prove anything as to the wholesomeness or unwholesomeness of the food.”
    The physicians gave other evidence, which is noticed in • the opinion of. the court.
    The court charged the jury, if they believed from the evidence that the cow was diseased, that the disease was known to the defendant, and that the nature and tendency of the disease was such as to taint and affect the flesh of the entire animal in any degree, although the taint was imperceptible to the senses, and although the eating of the flesh produced no apparent injury to those who ate it, still, as the probable consequence of eating the flesh of unhealthy and diseased animals may be highly injurious, the defendant was guilty of the offence set out in the indictment.
    The defendant’s counsel excepted to each and every part of the charge, and he requested the court to charge the following propositions, to wit:
    First. That in order to convict the defendant of the offence charged against him, he must be shown to be a person of skill, in order to have a guilty knowledge that a disease located in and about the head would render the body of the animal diseased and unwholesome for food.
    Secondly. That guilty knowledge of the disease in the head or extremity is not presumptive evidence of guilty knowledge that the meat was unwholesome for food.
    Thirdly. That the knowledge of a sore upon the head does not necessarily imply guilty knowledge of a disease in the body or meat which was sold for food that would render the meat unwholesome.
    The court declined to charge in manner and form as requested, and stated that the court supposed that the charge given embraced the whole law applicable to the case.

      The counsel for the defendant excepted “to the above ruling and decision of the court.”
    The court sentenced the defendant to pay a fine of $75, and stand committed until the fine was paid.

      B. F. Tracy (District Attorney), for the people.

      N. W. Davis, for the defendant.
   By the Court, Balcom, J.

Blackstone says: “The selling of unwholesome provisions” is an offence against public health. (4 Bl. Com., 162.) It is laid down by Bussell “that the public health may be injured by selling unwholesome food.” (1 Russ. on Cr., 115.) This author again mentions “the selling of unwholesome provisions ” as an indictable offence, and remarks: “ It is said, more largely, that the giving of any person unwholesome victuals, not fit for man to eat, lucri causa, or from malice and deceit, is undoubtedly, in itself, an indictable offence.” (2 Russ. on Cr., 286.) The same principle is stated by Roscoe. (Rosc. Cr. Ev., 379, 4th Am. ed., from 3d Lond. ed.) Roscoe further says: “It is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells.” (Id., 797.) Wharton enumerates “the selling of unwholesome provisions ” among misdemeanors. ( Whart. Am. Cr. L., 36.) Barbour remarks that “ selling unwholesome provisions is a misdemeanor at common law.” (Barb. Cr. Tr., 223.)

The indictment in Treeves’ case charged the sale of five hundred pounds weight of unwholesome bread, “ to be eaten as food.” (2 Russ. on Cr., 286; 2 Chit. Cr. L., 558.) In Dixon’s case the allegation in the indictment was, that the defendant, a baker, supplied to the Boyal Military Asylum, as and for good wholesome bread, divers loaves mixed with certain noxious ingredients not fit for the food of man, which he well knew so to be at the time he so supplied them. Dixon was convicted, and Ms conviction was affirmed in lane. (Rex v. Dixon, 4 Camp., 12; 2 Russ. on Cr., 287; 2 Chit. Cr. L., 559.)

Indictments have been held good which stated the sale and delivery of unwholesome bread to O. D., for the use and supply of himself and others. (2 Chit. Cr. L., 556, &c.) In one case, the objection was taken to the indictment, on a motion in arrest of judgment, that it did not specify that the unwholesome loaves of bread were delivered “to be eaten,” and the court held that the allegation that the loaves were delivered for the use and supply of children must mean that they were delivered for their eating. (4 Russ. on Cr., 116.)

The statement in the indictment in this case that the defendant sold the beef to divers citizens “as good and wholesome beef and food,” means that he sold it to such citizens to be eaten by them. It would be absurd to hold that the language of the indictment authorizes the conclusion that such citizens may have purchased the beef for their dogs, or for any purpose except for themselves or families to eat; and no inference can be “spelled out of” the indictment that the defendant intended to sell the beef to be applied to any use, by the purchasers, other than food for themselves or their families. •

The evil intent of the defendant in making the sale, and the time and place in wMch he made it, are sufficiently averred in the indictment. It is true that the form of the indictment might be improved, but still it is sufficient to uphold the conviction on it. The indictment is not defective because the persons are not named in it to whom the defendant sold the beef, for they were unknown to the jurors. (2 Chit. Cr. L., 558); and it was not necessary to set forth what rendered the beef unwholesome, or to state that the defendant intended to injure the health of the persons who ate it, or that it did injure their health. (2 East P. C., 822 3 Maul. & Sel., 16.)

What the defendant’s wife said to him about the unwholesomeness of the meat did not tend to establish the fact that it was unwholesome; but it was competent evidence to show that the defendant’s attention was called to the condition of the meat before he sold it. It proved very little any way; but it was nevertheless competent evidence on the question whether the defendant knew or believed the meat was bad when he disposed of it.

The questions put to the two physicians were unobjection able. It was proper for the people to establish that the eating of diseased meat does not always cause apparent sickness. It was also proper for them to give their opinions, from the description which other witnesses gave of the sore on the cow’s head, as to the nature of the disease which the cow had, and that it would cause fever, and that the flesh of animals laboring under a fever is unwholesome.

The charge of the court to the jury was substantially correct. I am aware that the broad proposition is asserted by Wharton, that “to support an indictment for knowingly selling unwholesome provisions, the provisions sold must be in such a state as that, if eaten, they would, by their noxious, unwholesome and deleterious qualities, have affected the health of those who were to have consumed them ” ( Whart. Am. Cr. L., 701); and I shall not attempt to controvert this proposition, nor does the charge of the court conflict with it. As I understand the evidence of the physicians, the eating of diseased meat, although it produces no obvious ill effects, does in reality injure the health of those who consume it. The jury must have understood from the charge that they could not convict the defendant unless the meat was in such a state as to injuriously affect the health of those who ate it, but that it was not necessary to his conviction that the injury should be apparent to the senses, if the medical testimony satisfied them that it did or would injure the health of those who partook of it, provided the defendant knew the cow was diseased from which the meat was taken. And this construction of the charge is in harmony with the proposition laid down by Wharton.

Dealers in tainted provisions have no right to palm off their noxious articles until they have prostrated those who eat them by actual sickness. The people must be protected against the sale of unwholesome provisions by the punishment of persons who deal in them, though nobody be made apparently sick by eating them.

The fact that no person was affected injuriously by eating the beef which the defendant sold, was strong evidence that it was wholesome, but it was not conclusive; and this court cannot say but that the jury gave due weight to it in determining the case.

The court did not err in refusing to adopt the three propositions which the defendant’s counsel insisted should be stated to the jury as legal rules to govern them in determining the case. Nor was the court bound to mention them as pertinent suggestions in regard to the questions of fact in the case. The facts were probably discussed before the jury 'sufficiently by the defendant’s counsel; at least, such is the presumption; and the court did not err in the opinion that the charge, as made, embraced the whole law applicable to the case.

The facts that the cow was diseased, and that the defendant knew it, were undisputed ; and the presumption is that no part of an animal that is rotten with disease in any place is fit food for man to eat.

The defendant sold the meat of the cow after his wife had told him she would not like to cook it or eat it, and he took the risk upon himself that it was wholesome, when he disposed of it, knowing that it came from a diseased cow. (Rex v. Dixon, 4 Camp., 12.)

The verdict was not against evidence. The defendant was rightfully convicted; and his conviction and sentence should be affirmed.

The following dissenting opinion was delivered by

Mason, J.

The charge of the court below was right. If the nature and tendency of the disease was such as to taint and affect the flesh of the entire animal in any degree, and this was known to the defendant, he was guilty of a misdemeanor in selling it to persons to be eaten by them ; for, if the unwholesome food may be injurious to the health of those who eat it, that is sufficient. It is not necessary that it actually should have proved injurious to the health of those who consumed it.

I am inclined to think, however, that the court below should have arrested the judgment, on the ground that the indictment fails to charge a criminal offence.

The security of the accused requires precision and certainty in a criminal pleading, and will not admit anything to be taken by intendment. (6 Metc., 264.) As I understand the law, to constitute the criminal offence of selling unwholesome meat it is necessary that it be sold for the food of man, or for his use as food; and it is necessaiy to aver in the indictment that the unwholesome article was sold for the food of man, or some other equivalent allegation, showing that it was sold for the use of a person or persons to be eaten as food. The indictment in the case at bar does not contain such an allegation. It alleges that the defendant did sell to divers citizens of the state, to the jurors unknown, divers to wit, five hundred pounds of beef as good and wholesome beef and food, and then and there delivered the same, &c. This is not an averment that it was sold for the use of any of these divers citizens as food, or that it was designed, either by the seller or buyer, that they should use it as food for themselves or in their families. • This indictment is not sufficient, in my judgment, to sustain the conviction. There is no averment that the beef was sold to these persons to be consumed as food, and consequently the indictment does not charge a criminal offence. (Moses v. Mead, 1 Denio, 387; 3 Maule & Sel., 11; 2 East P. C., 821; 4 Camp., 11; 3 John. Cas., 265, 267; The State v. Norton, 2 Ire., 40 ; 2 Hale P. C., 165.)

The judgment of the Court of Sessions should be reversed, and judgment on the verdict of conviction be arrested on this ground.

Gray, J.,

concurred in the conclusions arrived at by-Justice ■ Balcom, and the judgment of the Tioga Sessions was thereupon affirmed.