Hodson v. Miner

• Decision Date: 19 January 1893
• Citation: 144 Ill. 308,33 N.E. 40
• Parties: PEOPLE ex rel. HODSON, State Fish Warden, v. MINER et al.
• Court: Illinois Supreme Court

144 Ill. 308

33 N.E. 40

PEOPLE ex rel. HODSON, State Fish Warden,

v.MINER et al.¹

Supreme Court of Illinois.

Jan. 19, 1893.

Error to circuit court, Mercer county; John J. Glenn, Judge.

Prosecution of James Miner and Fred Selleck for violation of the fish law. Defendants were acquitted. The people bring error. Affirmed.

J. M. Brock, for the People.

Pepper & Scott, for defendants in error.

CRAIG, J.

This was a prosecution instituted before a justice of the peace of Mercer county against James Miner and Fred Selleck for a violation of the fish law, by illegally catching and killing fish with a seine, contrary to the statute of the state. The prosecution was commenced by filing a sworn complaint before the justice, upon which a warrant was issued, in the name of the people, for the arrest of the defendants named in the complaint. The defendants were arrested and brought before the justice, where a trial was had before a jury, resulting in a verdict of not guilty, and the defendants were discharged. Walter D. Hodson, who made the complaint, took an appeal to the circuit court, where, on motion of the defendants, the appeal was dismissed. An application was made for an appeal, which the court refused, but a transcript of the proceedings in the circuit court, duly certified by the clerk of that court, has been filed in this court, upon which errors have been assigned; and as the defendants have appeared, and filed briefs, the record may be treated as filed in answer to a writ of error.

The circuit court, as we understand the record, dismissed the appeal on the ground that the proceeding was a criminal prosecution, and, as there had been one trial before the justice of the peace and a jury, the defendants could not be tried a second time for the same offense, on appeal or otherwise. Section 10, art. 2, of our constitution, provides: ‘No person shall be compelled, in any criminal case, to give evidence against himself, or be twice put in jeopardy for the same offense.’ Section 14 of the fish law of 1885 and 1887 provides that any defendant who may ve arrested, or, in case of acquittal, the party making the complaint, or any person who will give the necessary bond, shall have the right of appeal on the same terms as in civil cases before justices. As the statute is sufficiently comprehensive to allow an appeal in a case of this character, on behalf of the people, the only question to be determined is whether the statute is in conflict with the constitution. On the 31st of May, 1887, the legislature passed an act to encourage the propagation and cultivation, and secure the protection, of fish, in all the waters of this state. This act contained 16 sections, and provided that all acts in conflict with the act should be repealed. On the 3d day of June, 1889, another act was passed, amending the act of 1887 by substituting sections 1-6 and section 15 for sections 1-6 and section 15 in the other act. The act was again amended in 1891. But as this prosecution was commenced in November, 1890, it must be controlled by the acts of 1887 and 1889, and such portions of the act of 1885 as were not repealed by the act of 1887. Section 8 of act of 1887 requires all suits brought to enforce the provisions of the act to be brought before a justice of the peace, in the name of the people, on the complaint of any person showing by affidavit that some section of the act had been violated. Section 10 provides that, if the justice before whom the complaint is made shall be satisfied that there is reasonable cause, he shall issue his warrant, directed to the sheriff or constable of the county, commanding him forth with to arrest and bring before him the person alleged to be guilty. Section 11 provides for a trial before the justice and a jury, if one should be demanded, and judgment shall be for conviction or acquittal. Section 12 authorizes an execution to issue upon a judgment of conviction immediately; and section 13 provides, if the execution is returned, ‘No property found,’ the justice shall issue his warrant to the sheriff or constable, commanding him to take and deliver the defendant to the jailer of the county, who shall commit the defendant not less than 10 nor more than 60 days, as the justice shall direct in his warrant. Section[144 Ill. 311]5 of the act of 1889 makes it the duty of all sheriffs and constables and fish commissioners to cause any person violating the act to be promptly prosecuted, and the fish commissioners shall have power to arrest without warrant any violators of the act, except as to sections 2 and 3. Section 15 provides that a person violating any of the provisions of the act shall be guilty of a misdemeanor, and upon a conviction shall be fined not less than $10 nor more than $200. Under these provisions of the statute the defendants were arrested, under a warrant, charged with the violation of a public law, a conviction under which is declared to be a misdemeanor.

In view of the language of the statute, and the manner in which the defendants were arrested, tried, and acquitted, the conclusion is irresistible that the defendants were tried for a criminal offense. Indeed, the fact that defendants were on trial for a criminal offense might be based on section 280 of the Criminal Code. That section declares a criminal offense consists in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence. The defendants having been arrested for a criminal offense, and tried before a court of competent jurisdiction, can they, on the application of the people, be tried a second time? This is forbidden both by the common law and our constitution, and cannot be done. In 1 Whart. Amer. Crim. Law, § 573, after referring to the provision in the federal constitution to the effect that no person shall be subject, for the same offense, to be twice put in jeopardy, the author says: ‘Whether this amounts to anything more than the...