Wickwire v. State

Storrs, J. In this case, the defendant below, before the justice of the peace, to whom the complaint was originally preferred, for an offence within his jurisdiction, interposed a demurrer to the complaint, which was overruled by the justice ; who thereupon rendered judgment against the defendant for the penalty prescribed by law. From this judgment the defendant appealed to the county court, where he, in the first place, presented a motion to erase the cause from the docket, on the ground stated therein, that the person who signed the complaint, as a grand-juror of the town of Canaan, was not a grand-juror of that town, and not authorized — 484 — to sign the same as such. This motion was overruled, and evidence refused to he received in support thereof, on the ground that the defect did not appear on the face of the proceedings. We think that this decision was correct, and for the reason stated by that court. It has never been the practice in this state, for courts to entertain a motion, whether written or oral, in a criminal cause, to quash it, or erase it from the docket, except for defects apparent on the face of the proceedings: nor are we aware of any case, in which such a motion has prevailed. Even in cases where the ground of the motion is apparent on the record, courts will exercise the power of quashing with great caution, and only in very clear cases. But to do so where the facts are extrinsic, would lead to irregularities in the proceedings, be attended with much practical inconvenience, and especially in oral motions of this description, be altogether anomalous, inasmuch as the record would not disclose the ground on which the cause was disposed of, nor furnish any future practical guide in similar cases. This motion being overruled, the defendant offered a plea, in the form of a plea in abatement, alleging the same facts as those stated in the motion ; which the county court refused to receive. In this decision we think that there was no error. The demurrer was the only plea or answer to the complaint, interposed by the defendant, before the justice; and from the judgment on the demurrer only, was the appeal taken to the county court. The principle which is established, and has always been followed here, both in civil and criminal causes, with respect to the character of the pleas which a defendant, in a cause appealed by him, has a right to enter in the appellate court, is. that he may there plead the same plea as that on which the judgment was rendered which was appealed from, or any matter of defence subsequent in its nature, which, according to the order of pleading established by the principles of the common law, he would have had a right to plead in the court below, if no appeal from its judgment had been taken; or, in other words, which, by those rules, he might have pleaded in the appellate court, if, originally, the cause had been brought and the pleadings had taken place there. This rule precludes the defendant, as in justice it should, from re-trying any issue, — 485 — which had been formed on the pleadings, and determined in , . . . , r , , , . , the court below, prior to that from the judgment on the appeal is taken, while it gives him the right to re-try the latter, or any other issue involving a matter of defence, which had not been previously, by legal construction, impliedly waived, or admitted to be untrue. This cannot produce any hardship or injustice to the defendant, who has only to appeal from any judgment, by which he deems himself aggrieved, and which he wishes to review in the appellate court. The correctness of the decision of the county court, in refusing to receive the plea which was there tendered, by the defendant, therefore, depends on the question, whether he would have had a right to offer that plea in the justice’s court, or in the county court, in case the suit had originally been brought there, after the demurrer had been there overruled. It is to be observed, that in this case, the complaint purports to be signed and presented to the justice, by Fitch Ferris, as a grand-juror of the town of Canaan; and that he is described therein to be such grand-juror. As it respects his official authority, it is good upon its face. If the person signing the complaint as a grand-juror, was not such in fact, it could only be made to appear by averment of matter extrinsic of the record. It would be abateable, only by a plea in abatement, or of that nature, alleging the fact of the want of such authority, in the mode adopted in the plea which the defendant tendered, and which was refused to be received in the county court. A demurrer in abatement, as it is, in criminal pleadings, termed, which, like all other demurrers, impliedly admits the facts stated in the pleading to which it is taken, and which, in this case, was the complaint, without the allegation of any other matter, and relies merely on their insufficiency in law for the purpose for which they are alleged, would not reach a defect in this complaint, founded on a want of such authority, for the reason that such want of authority does not appear on the face of the complaint. It is therefore obvious, that the demurrer before the justice, in this case, was not, in its character, a demurrer in abatement for any defect in the proceeding, on account of a want of official authority in the person signing the complaint, and concluding with a prayer that the process might be abated — 486 — or quashed, but that it was a demurrer in bar for the defectiveness of the allegations in the complaint, in subtance or form, and concluding with a prayer that the defendant might be discharged from the premises. Its form, also, shows it to be of the latter description. We find less said in the modern books on the subject of these two kinds of demurrers, because the latter kind, especially, has gone almost into disuse, owing to the circumstance that a doubt has arisen as to the judgment to be given against the defendant, if he is unsuccessful on his demurrer ; and also because the defects which it reaches, can be taken advantage of, after verdict, by motion in arrest or writ of error: but the difference between them seems formerly to have been distinctly recognized in England, particularly with reference to the judgment to which the defendant was supposed to be subject, in cases of felony, if the demurrer to the indictment was overruled. It was always held there, on indictments for felony, that if there was a demurrer in abatement, praying judgment of the indictment and that it might be quashed, the prisoner was never precluded from pleading over to the felony, if the demurrer was overruled ; but it was much doubted whether, if the demurrer was general, concluding in bar, and the indictment was held to be valid, final judgment should not be given against him ; although, at the present day, the better opinion is, that he shall have judgment to answer over, in every case of felony, where the demurrer, whether in bar or abatement, is adjudged against him. But in cases of mere misdemeanors, it is settled, that if the defendant demur to the indictment, whether in abatement or otherwise, and it is overruled, he shall not have judgment to answer over, but the decision will operate as a conviction, and the judgment will be final against him. The subject of these demurrers is here more particularly noticed, on account of the order, to which we have been referred, by the defendant’s counsel, in which criminal pleadings are set down, in some of the elementary treatises, where they are placed between pleas to the jurisdiction and pleas in abatement; from which the inference is sought to be derived, that demurrers constitute a class of pleadings, in criminal causes, prior to, and which may therefore be followed by, pleas in abatement. We perceive no ground, however, — 487 — for such an inference. This classification is not professed to be made for any such purpose ; and it is more probable, that - it was suggested, by the circumstance that demurrers were interposed in abatement, as wéll as in bar, and were more frequently of the latter description. This, moreover, is by no means an established classification, or one even generally adopted. Mr. Archbold, one of the latest writers on criminal law, in the order of pleadings, mentions demurrers after pleas to the jurisdiction and in abatement, and before special pleas in bar. It is, however, decisive of the point before us, that it is a well established! principle, that when the defendant demurs, whether in abatement or bar, to an indictment for a misdemeanor, and is unsuccessful, the judgment is final, and consequently precludes any further pleading as a matter of right. In the case now before us, the judgment rendered by the justice on the demurrer of the defendant, was peremptory, and therefore sanctioned by this principle. And no exception has been taken to it, nor attempt made to reverse it, on that ground ; while it would be clearly erroneous, if the judgment should have been interlocutory, and not, final. A peremptory or final judgment, of course, precludes the right to interpose, subsequently, a plea, either in abatement or bar. But, on the principle which prevails at the common law, as to the order of pleading, and which, so far as our researches have extended, has been held applicable to criminal, as well as civil suits, (with perhaps the exception before-mentioned as to indictments for felonies,) the county court were correct in rejecting the plea tendered by the defendant. That principle is, that a defendant shall not be permitted to plead, by way of defence, any matter which has been admitted by his previous pleadings. It is stated and illustrated, with great dearness, by Mr. Chilly, in his work on Pleading, p. 440. See also Arch. PI. ⅜ Ev. 283. Whether the plea tendered by the defendant, is to be regarded as technically a plea to the jurisdiction, or in abatement, it is very clear, that his demurrer impliedly admitted, that the complaint was duly presented to the justice, by a person having the requisite official authority to do so, as a grand-juror; and that the process was, in all respects, regular — 488 — and properly before the justice ; since it only set up the insufficiency of the matters alleged in the complaint, and referred only that question to the decision of the court. If the defendant wished to avail himself of a want of authority in the person presenting the complaint, his proper course was, to plead that fact in abatement, in the first instance, and if judgment had been rendered against him, and he further wished to review that judgment, to have appealed from it to the county court, where, if he had also been unsuccessful, it would have been competent for him to interpose any subsequent plea, which would have been admissible, if the suit had proceeded before the justice, or been originally brought in the county court. To the suggestion that it might operate unjustly, or as a hardship on the defendant, to preclude him from pleading to the jurisdiction or in abatement, after a demurrer or plea to the matter of the indictment or complaint, since he might have been ignorant of the facts on which those previous pleas are founded, it is sufficient to reply, that it is always competent for the court, in its discretion, to relieve the defendant, by permitting him to withdraw the plea which he has entered, and to interpose one of a prior class — :a discretion not unfrequently exercised, and which, it is presumable, will always be exercised properly. Chill. Cr. Law, 424. 1 Wils. 157. The remaining question, which respects the admissibility of the evidence received by the county court, for the purpose of shewing, that the persons, to whom the sale of liquors was made by the defendant, as alleged in the third, fifth and seventh counts, were addicted to habits of intoxication, and that this was known to the defendant, at the time of the sale; has not been pressed before us. These facts were material and necessary to be proved by the state ; and evidence that the defendant had, for a long time before the sale complained of, been in the habit of selling to them excessive quantities of spiritous liquors, to be drunk by them, was clearly admissible for that purpose. We think that the county court committed no error, in taxing against the defendant the service of the capias issued against the witnesses for the state, who disobeyed the sub489 peena. It stands on the same ground as other expenses incurred in procuring the attendance of witnesses. The superior court is therefore advised, that there is no error in the judgment complained of. In this opinion the other Judges concurred, except Waite, J., who was not present. Judgment to be affirmed.