Kennedy v. Raught

By the Court —

— The Defendant below was sued under sec.33, y>. 592 of the Corrvpiled Statutes, for not publishing-and sétting up in his office a table of his fees as Justice of the Peace. The suit was commenced in. 1858, and the complaint charged that the Defendant was a Justice for two years immediately preceding the 11th day of May, 1858. The Defendant was acquitted before the Justice, from which an appeal was taken to the District Court, where he was- con-*239vicíed, and a verdict rendered against Mm of $39.00. At tbe trial in the District Court the jury was sent out for deliberation in the evening of Wednesday, and the Court at once adjourned until Friday morning then next. No stipulations were made concerning the manner of receiving the verdict when the jury should agree. At half past eleven o’clock on Wednesday night, the jury being agreed, came into the Court Eoom, where the Judge received their verdict in the absence of both parties, and discharged them. On Friday morning the- Judge announced the verdict without the jury being called, or being present to be polled, or verify the verdict. Exceptions were taken to these several errors and were overruled by the Court.

The statute under which this prosecution is taken is clearly a penal law. It imposes a duty, and declares a forfeiture of money not to exceed two dollars for each day the duty is neglected. The penalty is recoverable in a civil action by any informer in his own name, but that does not change its penal nature. We think, therefore, that the Defendant having been fairly acquitted of the offence, no appeal could be.taken against him. Const. Minn., art. 1, sec. 7.

We think the statute is limited in its operation to officers in office, and to come into office, within six months after its passage. The language is that the fee bill must be set up in his office “within six months after the passage thereof,” referring to the chapter which was passed in 1851. The reason may have been that after that time the statutes would be sufficient notice in themselves. It may be the result of inartificial expression. It is however clear, and can admit of no construction that would extend it to the present case.

The Judge erred in receiving and delivering the verdict in the manner he did. It is very customary when juries are sent out in the evening, to consent that they may seal up their verdict and disperse if they do not agree before the adjournment of the Court. In such cases they deliver it to their foreman, the Judge, clerk or such person as maybe agreed upon; but the jury is not discharged, it is only permitted to separate, and in all cases assembles to render the verdict. Parties perhaps in a strictly civil case might consent to let them be *240discharged on their agreement and receive the verdict in their absence, but consent would be always necessary. Jurors have been frequently known to agree to a verdict merely for the purpose of being liberated, and dissenting when the verdict is about to be rendered. Parties are always entitled to have the jury present when the verdict is rendered.

The judgment must be reversed.