Journey v. State
| Decision Date | 30 April 1824 |
| Citation | 1 Mo. 428 |
| Parties | JOURNEY v. THE STATE. |
| Court | Missouri Supreme Court |
WRIT OF ERROR FROM MONTGOMERY COUNTY CIRCUIT COURT.
Journey was indicted in the court below, for retailing spiritous liquors, without license, contrary to the provisions of the act of the Legislature of this State, to license and regulate retailers of wines and spiritous liquors, passed December 12th, 1820. The only point of any importance to be decided is, whether this is an indictable offense. The second section of the act prohibits the offense, 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 sued for and recovered, in the name of the State, by bill, plaint, or information, &c. to be sued for and recovered in any 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 offense 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 mdictment 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 indictments; these 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 offense 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 proceeded by information. The bill of rights (sec. 14) says, that no person shall be proceeded against by information, for an indictable offense. We cannot, therefore, presume that they intended to make it indictable.(a) The judgment of the court below must be reversed, with costs.
(a). See State v. Corwin, 4 Mo. R. 611.
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