Hobson v. People

• Decision Date: 05 April 1882
• Citation: 11 N.W. 771,48 Mich. 27
• Court: Michigan Supreme Court
• Parties: HOBSON v. PEOPLE.

11 N.W. 771

48 Mich. 27

HOBSON v. PEOPLE.

Supreme Court of Michigan

April 5, 1882

The statute closing all "saloons" on "legal holidays" is meant to prevent the sale of liquors on holidays in any place of resort for refreshments. Act 267 of 1879.

A complaint for a violation of the statute which requires saloons to be kept closed on legal holidays is sufficiently precise if it avers that respondent kept a saloon; that he kept it open on the holiday named, and that he then and there sold spirituous and intoxicating or malt liquors.

Errors in proceedings removed on certiorari from before a justice cannot be made out if they do not appear by the justice's return

While the repeal of a statute generally ends all criminal proceedings under it, it does not do so in cases which have been put in judgment and in which the judgment has been transferred by certiorari to a higher court and affirmed.

Where the judgment in criminal proceedings before a justice is affirmed on certiorari the only judgment is that of the justice; and the stay of proceedings by reason of the writ of certiorari only postpones its enforcement for the period between suing out the writ and the return to the circuit of the order of the supreme court affirming the judgment.

The punishment of an offence under an old statute is not inconsistent with a new law which repeals acts inconsistent therewith, but which applies only to future cases, and to these in substantially the same way.

On certiorari no errors are considered that were not made a ground for allowing the writ.

A stay of execution does not affect the judgment, but only the time of its enforcement.

Error to Tuscola.

Hurst & Ransford, for plaintiff in error.

J.J Van Riper, for defendant in error.

CAMPBELL J.

Hobson was convicted before a justice of the peace of Tuscola county, of selling intoxicating liquor on a legal holiday being the first day of January, 1880. The judgment, being removed by certiorari to the circuit court of that county was affirmed. In this court the same errors are relied on as at the circuit, with the further one that by the repeal of the statute it has been made impossible to enforce the sentence, which was stayed on the removal.

It is objected that the justice got no jurisdiction because it is insisted the complaint does not show that Hobson kept such a saloon as the statute requires to be closed on holidays--viz., a saloon "where malt, spirituous or intoxicating liquors are sold." Laws 1879 p. 289. It is claimed that there are saloons of a different character, and that the complaint must show the keeping open of such a saloon as is specified. This is all true enough. But the complaint here, while it does not say in terms that Hobson kept that kind of a saloon, does distinctly aver that he kept a saloon--that he kept it open on the holiday named--and that he then and there sold spirituous and intoxicating and malt liquors. If he actually sold such liquors that day in his saloon it was for that occasion, at least, kept for that purpose, and was within the law. If the statute could be evaded by keeping a saloon for one purpose on holidays, and for another at other times, and have the latter use nullify the former, it would not be very difficult to defeat the law. Its object is to prevent the sale of liquors on holidays in any place of resort for refreshments, and is not open to the absurd construction claimed for it.

The objection that the jury deliberated in the presence of an officer is not made out. The justice makes no such return and unless error...