Journey v. State

Per Curiam. Journey was indicted in the Court below, for retailing spirituous liquors, without license, contrary to the provisions of the act of the Legislature of this State, to license and' regulate retailers of wines and spirituous liquors, passed December 12th, 1820. The only point of any importance to be decided, is, whether this is an indictable offence.. The second section of the act prohibits the offence, under a penalty of one hundred dollars, to be recovered with costs of suit. The seventh section of the same act, points out the mode in which all penalties, incurred under that act, shall be recovered. It says, “they shall and may be sited for and recovered, in the-name'of the State, by bill, plaint, or information, fee.;, to be-sued for and recov.ered.iwauy Court of record) or (if the amount shall not exceed the jurisdiction of Justices of the Peace, in civil cases) before any Justice of the Peace.” The rule of law is, that if an act which was not an indictable offence at common law, is prohibited by statute, and a particular method of proceeding is given by the statute, that method must be'pursued, and you cannot proceed by indictment unless-that method is given by the- act: Cr. Jac. 643-4; 1 Burr. 543; 2 Burr. 803-4; 1 Chit. Crim. Law, 134; 1, Saun. 250, n. 3; 4 Hawk. 4. When the act is barely prohibited, and no method of proceeding pointed out, there you may indict. Here' methods of proceeding are pointed out which do not include indictmentsthese methods must be pursued, and.no other. It is said the last clause of that act, which requires the Circuit Court to'give the act in charge to the grand juries at each term, clearly shows that it was the intention, of the Legislature, that the offence might be' prosecuted by indictment. We cannot presume that such, were their intentions, especially as we can see other good reasons why the Legislature might require the act to be given, in charge to the grand jury, other than for the purpose of indictment. The Legislature-have expressly given, the-mode of proceeding by information. The bill of rights (sec-. 14) says, that no.person shall be proceeded against by information, for an indictable offénce. We cannot, therefore, presume that they intended to make it indictable. The judgment of the Court below must be reversed, with costs.