Pease v. Foulkes

• Decision Date: 13 August 1929
• Citation: 147 A. 212
• Parties: PEASE v. FOULKES, Sheriff.
• Court: Maine Supreme Court

147 A. 212

PEASE

v. FOULKES, Sheriff.

Supreme Judicial Court of Maine.

Aug. 13, 1929.

Case Reserved from Supreme Judicial Court, Piscataquis County, at Law.

Petition by Fred C. Pease for writ of habeas corpus against Thomas L. Foulkes, Sheriff of Piscataquis County. Case reserved. Writ denied.

Argued before WILSON, C. J., and DEASY, STURGIS, BASSETT, and FARRINGTON, JJ.

J. S. Williams, of Guilford, for plaintiff.

Jerome B. Clark, Co. Atty., of Milo, for defendant.

FARRINGTON, J. On February 12, 1929, the petitioner, Fred C. Pease, was arrested on a complaint and warrant issued against him by the Piscataquis municipal court, charging him with unlawful possession of ten gallons of mash fit for distillation, and on the same date he was found guilty, and was sentenced by the judge of that court to a term of six months in jail, and to payment of a fine of $500 and costs, and in default of payment to serve an additional six months' imprisonment. From this sentence the petitioner appealed, and at the March term of the Supreme Judicial Court for Piscataquis county he pleaded guilty to the offense as set forth in the complaint, and was sentenced by the presiding justice on March 21, 1929, to a term of four months in jail and to the payment of the same fine, with the same additional sentence in case of default as in the municipal court, and on March 23, 1929, he was committed to the county jail.

On May 1, 1929, he brought his petition for habeas corpus, and on May 28, 1929, the justice before whom the petition was brought, at the request of parties, reserved the case for the law court to determine whether upon the foregoing statement of facts the writ of habeas corpus should issue or be denied.

The contention of the petitioner for the writ of habeas corpus is that proceedings should have been by indictment, and that without an indictment there could be no legal conviction or sentence.

In 1858 (Public Laws, c. 33), the Legislature of Maine passed "An act for the suppression of drinking houses and tippling shops," which repealed "An act to restrain and regulate the sale of intoxicating liquors and to prohibit and suppress drinking houses and tippling shops approved April 7, 1856," and all other inconsistent acts and parts of acts. The act approved April 7, 1856 (Pub. Laws 1856, c. 255) (section 26) provided: "Justices of the peace, and judges of municipal and police courts, shall have jurisdiction by complaint, of all prosecutions under this act, where the penalty provided for the offense cannot exceed twenty dollars, and may try the same and pass sentence thereon. But where the punishment may be by fine exceeding twenty dollars, or by imprisonment, the prosecution shall be by indictment, and the magistrates aforesaid, shall have power upon complaint, in such cases, to examine and bind over, as in other cases of offenses which are subject to indictment."

Section 23 of this 1858 repealing law is as follows: "In matters not otherwise provided for, except prosecutions against common sellers and those for offenses described in the third and tenth sections of this act, judges of municipal courts and police courts, and justices of the peace, having jurisdiction in other criminal matters in the places where they reside, shall have jurisdiction by complaint, original and concurrent with the supreme judicial court, of all prosecutions under this act."

The "third" section referred to in the preceding paragraph provided, on failure to give certain bonds, certain penalties against a person selling within the state any Intoxicating liquors manufactured by him within the state, and need not be considered in this case.

The "tenth" section referred to in said paragraph covered drinking houses and tippling shops.

Section 2 of the 1858 repealing law provided that "no person shall manufacture any intoxicating liquor, for unlawful sale," and also "any manufacturer of intoxicating liquors shall be allowed to sell intoxicating liquors manufactured by him within this State, to municipal officers authorized by this act to purchase the same." There were provisions as to bond.

Under these conditions the Legislature of 1867 (Public Laws, c. 130), amended chapter 33 of the Public Laws of 1858, and among other things provided that the second section of the 1858 act "shall not authorize the manufacture, for sale, of any intoxicating liquors except pure rum and alcohol. The manufacture for sale, of all other kinds of intoxicating liquors, except cider, is hereby prohibited." (Section 5.) With knowledge of this change in regard to manufacture, and with the keepers of drinking houses and tippling shops and the common sellers also in mind, and with knowledge that the 1858 repealing act had greatly enlarged the jurisdiction of municipal and police court judges, the same Legislature (Public Laws, c. 130, § 6) provided as follows:

"All prosecutions against persons for manufacturing liquors in violation of law, for keeping drinking-houses and tippling-shops, and for being common sellers of intoxicating liquors, shall be by indictment; and in all other prosecutions under this Act, and the Act aforesaid to which this is additional, judges of the municipal and police courts, justices of the peace, and trial justices, in their several counties, shall have jurisdiction, by complaint, original and concurrent with the supreme judicial court. All prosecutions in the supreme judicial court shall be by indictment. * * *"

From 1867, including the Revision of 1916 and to date, there has been no change in the essential language of these statutory provisions as to prosecutions which shall be by indictment, now found in chapter 127, Revised Statutes, § 40, as amended.

The Legislature...