State v. Beswick

• Decision Date: 05 February 1881
• Citation: 13 R.I. 211
• Parties: STATE v. JOHN BESWICK.
• Court: Rhode Island Supreme Court

13 R.I. 211

STATE v. JOHN BESWICK.

Supreme Court of Rhode Island.

February 5, 1881

Pub Laws R.I. cap. 797, § 4, of March 18, 1880, provide:

" It shall not be necessary to prove an actual sale of the liquors enumerated in sections 18 and 19 of said chapter 508, in any building, shop, saloon, place, or tenement, in order to establish the fact that any of said liquors are there kept for sale; but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grog-shops, tippling-shops, or places where such liquors are sold, shall be primâ facie evidence that said liquors are kept on such premises, for the purposes of sale within this State."

Held, that this act, by making the recited circumstances primâ facie evidence against an accused, is unconstitutional and void, in depriving the accused of the protection of the common law principle that every person is to be presumed innocent until he is proved guilty, as recognized in the Constitution of Rhode Island art 1, § 14, and in violating the provision that an accused shall not " be deprived of life, liberty, or property unless by the judgment of his peers or the law of the land." Constitution of R.I. art. 1, § 10.

What is meant by the words the " law of the land."

A statute repealed § 19 of a former act, and reënacted it in an amended form as § 19 of said act.

Held, that as to subsequent offences § 19 of said act was § 19 as amended.

A statute providing " that no negative allegations of any kind need be averred or proved in any complaint," under a law forbidding the sale of liquors, does not violate any constitutional right of the accused.

There is no presumption of law that a liquor described simply as " beer" is a malt liquor.

EXCEPTIONS to the Court of Common Pleas. The facts involved are stated in the opinion of the court.

Public Laws R.I. cap. 797, of March 18, 1880, contain the following provisions:

" It is enacted by the General Assembly as follows: SECT. 1. The following forms may be used in prosecutions under sections 18 and 19 of chapter 508, of the Public Laws, and if substantially followed shall be sufficient in law to fully and plainly, substantially and formally, describe the offences set forth in said sections respectively, and to authorize the lawful doings of the officers acting under and by virtue of the warrants and other process issued in substantial conformity therewith; but this shall not be so construed as to prohibit the use of other suitable forms.

" Form for a complaint and warrant for keeping intoxicating liquors for sale under section 19.

" To ________, Esquire, trial justice (or clerk, as the case may be) of the Justice Court, or to ______, a justice of the peace authorized to issue warrants, of the town of ____, in the county of _____, in the State of Rhode Island and Providence Plantations, ________, chief of police (or special constable, or other person, as the case may be) of the town of _____, in said county, on oath complains in the name and behalf of the State, that at said ______, on the ______ day of ____ A. D. 18__, with force and arms _____, of said _______, without lawful authority did then and there keep and suffer to be kept on his premises, in his possession, and under his charge, ale, wine, rum, and other strong and malt liquors, and mixed liquors a part of which was ale, wine, rum, and other strong and malt liquors, with intent to sell the same in this State.

Wherefore he prays advice, and that process may issue, and that the said respondent may be apprehended and held to answer to this complaint, and be further dealt with relative to the same according to law.

Dated at _____, this ____ day of ____ A. D. 18__.

[Here insert certificate of oath of complainant, and recognizance when required by law.]

" STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS.

SC.- To the sheriff of the County of ________, his deputies, or to either of the town sergeants or constables in the County of ____ Greeting:

" Complaint having been made to me on oath, as above written, you are therefore hereby required in the name of said State forthwith to apprehend the body of the said respondent above named (if he may be found within your precinct), and him have before the Justice Court of the town _________ of _____, or some other lawful authority, to be dealt with relating to the premises, as to law and justice shall appertain. And for so doing this shall be your warrant. Hereof fail not.

[L. S.]

Given under my hand and seal, at ______, in said county, the ___ day of _____, in the year 18__.

Trial Justice, Clerk of the Justice Court, or Justice of the Peace authorized to issue warrants, of the town of

SECT. 2. No negative allegations of any kind need be averred or proved in any complaint under said chapter 508, or under section 5 of this act; and evidence of the sale or keeping for sale of any of the liquors enumerated in sections 18 and 19 of said chapter 508 shall be primâ facie evidence that the said sale or keeping for sale is unlawful; but the respondent in any such complaint may show any license or authority to sell, or any other fact that would render a sale or keeping for sale lawful, by way of defence.

SECT. 3. All of the liquors mentioned and enumerated in said sections 18 and 19 of said chapter 508 shall be considered intoxicating liquors within the meaning of this chapter.

SECT. 4. It shall not be necessary to prove an actual sale of the liquors enumerated in sections 18 and 19 of said chapter 508 in any building, shop, saloon, place, or tenement in order to establish the fact that any of said liquors are there kept for sale; but the notorious character of any such premises, or the notoriously bad or intemperate character of persons frequenting the same, or the keeping of the implements or appurtenances usually appertaining to grog-shops, tippling-shops, or places where such liquors are sold, shall be primâ facie evidence that said liquors are kept on such premises for the purposes of sale within this State."

Samuel P. Colt, Assistant Attorney General, for plaintiff.

Charles E. Gorman & Hugh J. Carroll, for defendant.

DURFEE C. J.

The complaint is in the form provided by Pub. Laws R.I. cap. 797, of March 18, 1880, for prosecutions under Pub. Laws R.I. cap. 508, §§ 18 and 19, ^[1] of June 25, 1875. The complaint is for a violation of § 19. One objection to it is that § 19 no longer exists, having been repealed by Pub. Laws R.I. cap. 653, § 2,^[1] of February 20, 1878. But cap. 653, § 2, while it repeals § 19 as it originally existed, reenacts it in an amended form as § 19 of cap. 508. It must therefore be taken as § 19 of cap. 508 in respect of offences subsequently committed. Other objections relate to the form of the complaint, which the defendant contends is fatally defective in that it does not contain the usual negative averments. Cap. 797, § 2, provides that " no negative allegations of any kind need be averred or proved in any complaint under said chapter 508." If this provision is valid, the objections to the form of the complaint fall to the ground. The defendant contends that it is unconstitutional, being in violation of the rights of the accused " to be informed of the nature and cause of the accusation," and not to be " deprived of life, liberty, or property, unless by the judgment of his peers or the law of the land." We do not think, however, that the provision is in derogation of either of these rights. The Constitution does not secure to the accused any particular form of complaint or accusation, but only information which will enable him to defend and protect himself. It does not exact the technicalities of criminal pleading, but only that degree of clearness and precision which is reasonably necessary to identify the offence which is the subject of the charge. We think the complaint here meets this requirement. No negative averments would be required by the rules of criminal pleading if the exceptions to the prohibition were not incorporated by reference in the prohibitory clause. But for the reference the burden would fall on the accused, if he were within an exception, to show it by way of defence. So too the burden would be cast upon him if the reference were stricken out by amendment, and certainly if the legislature can throw this burden on the accused by such an amendment, it cannot be unconstitutional for it to accomplish the same result by direct and original enactment. The only effect of the enactment is to require that if any of the few persons who are privileged to sell intoxicating liquors are prosecuted for selling or keeping for sale, they shall show that they are privileged in defence, instead of requiring the prosecution to show in every case that the accused is not privileged. We can but think that the requirement is as constitutional as it is reasonable.

The defendant contends that even if the negative averments were unnecessary, yet, inasmuch as the complaint alleges that the keeping was without lawful authority, it was incumbent on the prosecution to prove it. We do not think so. The statute only makes it necessary for the prosecution to prove a keeping for sale, which is presumably unlawful, unless the defendant shows that he is licensed or privileged. Commonwealth v. Tuttle, 12 Cush. 502; Commonwealth v. Carpenter, 100 Mass. 204.

The other exception raises the question whether § 4 of cap. 797 is constitutional. The language of § 4 is as follows, to wit:

" It shall not be necessary to prove an actual sale of the liquors enumerated in sections 18 and 19 of said chapter 508 in any building, shop, saloon, place, or

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