Kilbourn v. State

Peteks, J. 1. The first error assigned is, that it is not nlle-ged in the information, that this is the first offence. But in all cases where there may be successive convictions with cumu-lathe penalties, such has been the invariable practice, in this state and in the state of New-York, for more than thirty years. No person ought to be, or can be, subjected to a cumulative penalty, without being charged with a cumulative offence. The People, v. Youngs, 1 Caines 37. 2. That distinct sales to different persons, are alleged in the information. But this is duplicity, and can be taken advantage of only by special demurrer. 1 Chitt. Plead. 640. 1 Swiff s Dig. 638. 3. It is not stated in the information when and to whom said wine, rum, &c. were sold. The averment is, that said wine, rum and other liquors were sold at the defendant’s shop or store, in said Middletown, to Erastus Crane and others of said town. 4. That the justice of the peace, who tried the cause, at the time of the trial, resided in Middletown, where the offence was committed. The statute on which the objection is founded, relates to civil actions, and not to criminal prosecutions, Slat. 148. tit. 21. s. 38. Davis v. Salisbury, 1 Day 278. For these reasons, 1 advise the superior court, that there is no error in the judgment complained of. [572] The other Judges were of the same opinion. Judgment affirmed.