People v. Page

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 *616twenty 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 *617in 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 *618give 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 *619any 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 *620offences 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 *621public 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.