State v. Fetterer

• Decision Date: 01 December 1894
• Citation: 65 Conn. 287,32 A. 394
• Court: Connecticut Supreme Court
• Parties: STATE v. FETTERER.

32 A. 394

65 Conn. 287

STATE

v. FETTERER.

Supreme Court of Errors of Connecticut.

Dec. 1, 1894.

Appeal from criminal court of common pleas, New Haven county; Hotchkiss, Judge.

Charles W. Fetterer was convicted of peddling without a license, and appeals. Reversed.

William S. Pardee, for appellant.

George M. Gunn, for the State.

BALDWIN, J. Chapter 121 of the Public Acts of 1893 (page 271) provides that the selectmen of any town may issue licenses to such persons as they find proper persons to engage in the business of auctioneer, peddler, or hawker of goods, wares, and merchandise, or as traveling itinerant purchasers of junk or other second-hand goods, in their respective towns, for a term not exceeding one year, upon payment to the town of a fee not less than $1 nor more than $100, as they may direct; and that any person engaging in any such business, except in the sale of products of a farm or of the sea, without a license, shall be guilty of a misdemeanor. The defendant was convicted of peddling candies in the town of Branford, without a license, and on the trial it was claimed by him, and not denied by the state, that at the time of the acts complained of he had driven over to Branford, as the agent of a wholesale confectioner in New Haven; that he was accustomed to go there in the same way once a fortnight, with a wagon loaded with unbroken packages of candy; that there were several stores in Branford, kept by regular customers of his employer, at which candy was sold at retail, and he went from store to store, soliciting orders; that, if he obtained an order, and could fill it from his wagon, he did so, but otherwise booked it, to be filled by a subsequent delivery; that the purchases were generally made for cash, but occasionally on credit, and were confined to such as were necessary to keep up the stock in the respective stores; that he never sold or offered to sell at Branford except to these storekeepers, and sold to them only at regular wholesale prices; and that on his way to Branford he went through East Haven, and sold to the storekeepers there in the same way, and to no one else.

The court charged the jury, in substance, that there was no dispute about the facts, and, if they found them to be as thus claimed, it was a case of peddling; and, if the defendant had obtained no license as a peddler, they ought to render a verdict of guilty; adding that the statute was a valid law, the wisdom of which was a matter with which the court and jury had nothing to do, their duty being to obey it, until it was repealed or declared invalid by the highest court of the state. These instructions furnish no ground of appeal by reason of the manner or form in which they stated the opinion of the court as to the duty of the jury. The court, in a criminal case, cannot direct the return of any particular verdict; but the same statute which forbids it provides with equal distinctness that the court shall state its opinion to the jury upon all questions of law arising on the trial, and submit to their consideration both the law and the facts. Gen St. § 1630. The legislature has not dictated the mode of such submission, but the duty of making it is an active and important one. The matters submitted must be stated, and stated plainly. Whether this should be done in few words or many, with comments on the evidence or without comments, with or without an expression of opinion as to what verdict, in view of the law and the evidence, may seem to the court to be a proper one, are questions as to which the statute pre scribes no rule, except that it is beyond the power of the court to direct a verdict, either of conviction or acquittal. Until the present century came in, the courts of Connecticut did not exercise, and perhaps did not possess, the power of instructing, or even advising, the jury as to matters of law, either in civil or criminal cases. The practice was thus stated by Judge Swift in 1796: "The court give no opinion with regard to the points of law arising in the case, nor does the judge give them any direction how to find the verdict, but the whole case is committed to them as relative to the law arising out of the facts, as well as the facts themselves." 2 Swift, Syst. Laws Conn. 258. Such a mode of procedure, though sanctioned by long usage, became the object of just criticism, soon after the provision was made, by the legislature, in 1784, for recording the opinions of the judges of the superior court upon matters of law presented on issues tried without a jury, so that "thereby a foundation be laid for a more perfect and permanent system of common law in this state." St. 1784, p. 267; 2 Swift, Dig. 412; Swift, Ev. 169. The supreme court of errors was reconstituted in 1806, by the substitution on the bench of the judges of the superior court for the governor, lieutenant governor, and council; and in May, 1807, it was authorized to institute such rules of practice for the regulation of the superior court as should be "deemed most conducive to the administration of justice." St. 1810, pp. 218, 221. A few days later a rule of court was adopted that in charging a jury the judge should "state to them the several points of law which may arise, and declare to them the opinion of the court thereon." 3 Day, 28. It thereupon became the practice to instruct the jury definitely as to their duty in criminal causes in view of the law...