Mccutcheon v. People of State
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8524,69 Ill. 601 |
| Parties | JOHN P. MCCUTCHEONv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
This was an indictment against John P. McCutcheon, for the sale of intoxicating liquor to Jay Porter, a minor.
The following is a copy of the indictment:
“1. The grand jury chosen, selected and sworn, in and for the county of Knox, in the name and by the authority of the People of the State of Illinois, upon their oaths present, that John P. McCutcheon, late of the county of Knox, and State of Illinois, on the first day of January, A. D. 1873, at and within the county of Knox, and State of Illinois, to Jay Porter, a minor, being under the age of twenty-one years, without the written order of his parents, guardian or family physician, intoxicating liquors then and there unlawfully did sell, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.
2. And the grand jurors aforesaid, in the name and by the authority of the people aforesaid, upon their oaths aforesaid, further present, that the said John P. McCutcheon, late of the county and State aforesaid, on the day and year aforesaid, at and within the county aforesaid, to Jay Porter, a minor, being under the age of twenty-one years, without the written order of his parents, guardian or family physician, intoxicating liquors then and there unlawfully did sell, contrary,” etc.
The indictment was certified to the county court, where the defendant entered a motion to quash the same, which the court overruled.
The proof showed that Jay Porter was a minor, seventeen years old, and that he bought beer and ale several times at defendant's saloon, without any written order from his parents; that the same was not purchased of the defendant himself, but of his bar-tender.
Messrs. KRETZINGER & HARVEY, and Mr. ED. LEACH, for the plaintiff in error.
Mr. JAMES K. EDSALL, Attorney General, and Mr. J. J. TUNNICLIFF, State's Attorney, for the People.
This was an indictment found against plaintiff in error for unlawfully selling intoxicating liquors to a minor without the written order of his parents, guardian or family physician, contrary to the form of the statute. The indictment was certified to the county court, where a trial was had and the accused found guilty, and upon an appeal taken to the circuit court, the judgment was affirmed.
A motion was made in the county court to quash the indictment, for the reason it was not averred the accused knew Jay Porter, to whom it is alleged the intoxicating liquors were sold, was then a minor. The decision of the court overruling the motion to quash the indictment is assigned for error.
This prosecution was commenced under the second section of the act of 1872 in relation to the sale of intoxicating liquors, which provides, “it shall be unlawful for any person or persons, by agent or otherwise, to sell intoxicating liquors to minors, unless upon the written order of their parents, guardians or family physicians, or to persons intoxicated, or who are in the habit of getting intoxicated.” Session Laws 1872, p. 553.
The indictment is substantially in the language of the statute. This section makes it absolutely unlawful, notwithstanding the party may have a license obtained under the provisions of the first section of the act, to sell intoxicating liquors to minors, unless upon the written order of the parents, guardians or family physicians, and contains an absolute restriction upon selling such liquors to persons intoxicated or who are in the habit of getting intoxicated.
It is claimed the indictment is fatally defective, inasmuch as it fails to aver defendant knowingly sold liquors to a minor. It is insisted guilty knowledge is absolutely necessary to constitute the offense, and unless the scienter is averred, it can not be proved on the trial. The principal authority relied on in support of this proposition is the case of Miller v. The People, 3 Ohio, 471. This section of our statute is, no doubt, a substantial, if not a literal, copy of the Ohio statute on the same subject, and in construing it in Miller's case, the court said, “to convict for a violation of the second section, it is necessary to aver in the information, and prove on the trial, that the seller knew the buyer to be a minor.” Having adopted the statute of a sister State, it is claimed the legislature adopted also the construction previously given it by the courts of that State. The rule on this subject is stated as we understand it in Streeter v. The People, 69 Ill. 595. The doctrine as there announced is, that where the legislature adopts substantially the statute of another State, it is presumed to adopt also the construction previously given it by the courts of that State, unless such construction is inconsistent with the spirit and policy of our laws.
The construction given to similar language in the Ohio statute can not but be regarded as being inconsistent with the spirit and policy of our laws, and, therefore, no presumption prevails that, in adopting it, the legislature also adopted the construction that had previously obtained in that State. By our laws, every indictment or accusation of the grand jury shall be deemed sufficiently correct which states the offense in the terms and language of the criminal code, or so plainly that the nature of the offense may be easily understood by the jury. R. S. 1845, p. 181.
Since the adoption of this statute, it has uniformly been held it was not necessary to do more than state the accusation in the language of the statute creating the offense. Where the intent is mentioned as an element of the offense created by a law, it ought to be alleged; but where it is silent as to motive, no intent need be averred in the indictment.
The case of Ells v. The People, 4 Scam. 509, was an indictment for ““harboring and secreting” a slave. It was contended defendant, to be guilty of the offense, must have had knowledge of the fact the person harbored or secreted was at the time a slave, and that this knowledge should be averred in the indictment and proved on the trial. It was held, however, in such an indictment it was not necessary to allege a scienter. The court commented on the case of Birney v. The People, 8 Ohio, 230, upon the authority of which the case of Miller v. The People, supra, was decided, and expressly disapproved of the doctrine there announced.
The case of Cannady v. The People, 17 Ill. 158, was an indictment for selling spirituous liquors in less quantities than one gallon. The general averment of an illegal sale was held...
To continue reading
Request your trial
-
Ollre v. State
...Ga. 258. Compare: Johnson v. State, 83 Ga. 553, 10 S. E. 207; Noecker v. State, 91 Ill. 494; Mullinix v. People, 76 Ill. 211; McCutcheon v. People, 69 Ill. 601; State v. Stewart, 31 Me. 515; Carroll v. State, 63 Md. 551, 3 Atl. 29; People v. Longwell, 120 Mich. 311, 79 N. W. 484; People v. ......
- People v. Brady
-
Ex parte Harper
...166 Mass. 370 ; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N.Y. 321 ; State v. Kinkead, 57 Conn. 173 ; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119 ; United States v. Leathers , 6 Sawy. 17; United States v. Thomson, 12 Fed. 245; United States v. Mayfie......
-
State v. Ames
... ... from the facts and circumstances shown and not from the ... opinion of any witness. People v. McLaughlin, 150 ... N.Y. 365; State v. Garvey, 11 Minn. 95 (154); State ... v. Pierce, 85 Minn. 101 ... It is ... Sharp, 107 N.Y ... 427; Gunning v. People, 86 Ill.App. 676; 1 Bishop, ... New Cr. Proc. (4th Ed.) § 523; McCutcheon v. People, 69 ... Ill. 601 ... Evidence ... of the defendant's good character may generate and create ... a doubt as to his ... ...