State v. Jackson

• Decision Date: 17 March 1899
• Citation: 69 N.H. 511,43 A. 749
• Court: New Hampshire Supreme Court
• Parties: STATE v. JACKSON.

43 A. 749

69 N.H. 511

STATE

v. JACKSON.

Supreme Court of New Hampshire. Grafton.

March 17, 1899.

Appeal from police court.

Henry V. Jackson was convicted of fast driving, and he appeals. Affirmed.

Daniel C. Remich, for appellant.

George H. Adams, for the State.

CHASE, J. This is an appeal from a judgment of a police court by which the defendant was adjudged guilty of violating the provision of the statutes that "no person shall ride through a street or lane in the compact part of a town at a swifter pace than at the rate of five miles an hour" (Pub. St. c. 204, § 18), and was sentenced to pay a fine of one dollar and the costs of prosecution. The punishment prescribed for the offense is a fine not exceeding $20, or imprisonment not exceeding six months, Pub. St. c. 264, § 20. The statutes give justices of the peace and police courts authority to hear and determine actions of a criminal nature in which the punishment does not exceed a fine of that amount or imprisonment of that duration, or both, subject to a right of appeal to the supreme court by the accused. Pub. St. c. 248, §§3, 7; Id. c. 252, § 2. The defendant says that these provisions are void, because the legislature had no power, under the constitution, to give justices of the peace and police courts jurisdiction of offenses to which punishment of such magnitude is attached, and that consequently the judgment against him is void. The provision of the constitution relied on is as follows: "No subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty or estate but by the judgment of his peers or by the law of the land." Bill of Rights, art. 15. The position taken is that this provision guaranties a person against liability to punishment for an offense involving such consequences, unless the state obtains the judgment of his peers that he is guilty upon a trial according to the course of the common law, and that the trial allowed upon appeal is not such a trial, because, to avail himself of it, he must submit to a prior trial and conviction by another tribunal,—a burden which did not exist at common law. In other words the defendant says that, when the constitution was adopted, a justice of the peace had no such jurisdiction as the statutes above cited give him.

In State v. Gerry (N. H.) 38 Atl. 272, recently decided, it was held that a statute giving police courts concurrent jurisdiction with the supreme court, subject to appeal in criminal cases in which the fine did not exceed $200, and the term of imprisonment did not exceed one year (Laws 1895, c. 117), conflicted with article 15 of the bill of rights, and was void. The grounds of the decision were that, by this article, there was secured to the defendant in all criminal cases a trial by jury of substantially the same character and reached by the same procedure as that which was in use in 1784, when the constitution was formed; that there were at that time two classes of offenses, each having a course of procedure peculiar to itself; that the jury trial for offenses of the higher class was preceded by an indictment found by a grand jury or an information filed by the state's attorney, while that for minor offenses could be had only after a previous trial by a justice of the peace, and by claiming an appeal from his decision to a court provided with a jury, entering into a recognizance to enter and prosecute the appeal, and complying therewith; that the latter course of procedure could not be applied to the prosecution of offenses of the higher order without impairing the right secured to the accused; and hence that the police court had no jurisdiction in Gerry's Case, as the offense with which he was charged was of that order. The line of division between the two classes of offenses was not defined, and the question whether an offense punishable by a fine of $20 or an imprisonment of six months, or both, falls within the higher class, was not raised or considered.

In State v. Williams (N. H.) 42 Atl. 898, also recently decided, it was conceded by the defendant that the legislature had authority, under the constitution, to confer jurisdiction upon a justice of the peace or a police court to hear and determine a complaint for a first offense of keeping for sale lager beer and fermented cider in violation of law, which is punishable by a fine of $10.

The present case is the first in which the question of the constitutionality of the general jurisdiction conferred upon justices of the peace and police courts in criminal cases has been raised. A decision of the question requires a consideration of the state of the law on the subject as it was in 1784, when the constitution was formed, and prior and subsequent thereto.

The office of justice of the peace had existed in England for centuries when the emigration to New England took place. Jurisdiction in certain civil and criminal cases of minor importance was conferred upon such officers by their commissions and by acts of parliament 1 Bl. Comm. 349 et seq.; 3 Chit. Burn, Just. 539, 541, 542, 558, 559. While the New England colonies elected their own rulers, the assistants of the governor, or, as they were generally called, the "magistrates." exercised Jurisdiction in such cases. If it happened that no assistant resided in a town, a special magistrate for the town was appointed. This was done for Dover, Portsmouth, and Exeter by the Massachusetts authorities when those towns placed themselves under that jurisdiction, in 1641 and 1643. 1 Belk. Hist. 50, 51; 3 Nar. & Crit. Hist, of America by Winsor, 326 et seq. In the Revised Laws of the Massachusetts Colony, issued in 1660, the following provisions are found, the first dated 1647-49, and the last 1646: "For easing the charge and incumbrance of courts by small causes: It is ordered by this court and authority thereof that any magistrate, in the town where he dwells, may hear and determine by his discretion (not by jury), according to the laws here established, all causes arising in that county, wherein the debt, trespass, or damage doth not exceed forty shillings, who may send for parties and witnesses, by summons or attachment * * * And forasmuch as many times it so falls out that small thefts and other offenses of a criminal nature are committed both by English and Indians in towns remote from any prison or other fit place to which such malefactors may be committed until the next court, it is therefore ordered that any magistrate, upon complaint made to him, may hear, and upon due proof determine, any such small offenses of the aforesaid nature according to the laws here established and give warrant to the constable of that town where the offender lives to levy the same: provided, the damage or fine exceed not forty shillings: provided, also, it shall be lawful for either party to appeal to the next court to be holden in that jurisdiction, giving sufficient caution to prosecute the same to effect at the said court. * * * And, where the offender hath nothing to satisfy, such magistrate may punish by stocks or whipping, as the cause shall deserve, not exceeding ten stripes." Colonial Laws, Mass. 1660-1672 (published by city of Boston In 1889) pp. 127, 132. See, also, Stearns, Real Act. 462. In 1679, immediately after Charles II. discontinued the jurisdiction of Massachusetts in the New Hampshire territory, the general assembly of the province of New Hampshire enacted: "That any one of the council [that is. the council provided for by the king's commission to President Cutt] may hear and determine such smaller thefts and pilferings as exceed not the damage or fine of forty shillings, or penalty of stocking or whipping, not exceeding ten stripes; or only legal admonition, as he shall see cause; saving liberty of appeal to the delinquent." 1 Laws (Ed. of Batchellor. editor and compiler of Early Province and State Papers) p. 17, § 7. By another enactment this jurisdiction was extended to all criminal cases in which the punishment did not exceed that above mentioned. Id. p. 22, § 24. Although these statutes may have ceased to be operative in consequence of the king's rejection of them (Id. pp. 9, 45), they show the general understanding of the people on the subject. In the king's commission appointing Cranfield lieutenant governor of the province, dated May 9, 1682, he was expressly authorized to "constitute and appoynte * * *. justices of the peace." among other officers. Id. p. 51. The minutes of the council show that, after this, justices of the peace were appointed from time to time. See Prov. Laws (Batchellor's Ed.) p. 108. September 20, 1692, Richard Waldron was appointed, and Capt. Stileman was appointed for Great Island. 2 Prov. Pap. 72. See, also, Id. p. 231. Prior to 1682 Richard Martyn, in issuing summonses and other papers usually pertaining to the office of justice of the peace, attached to his signature the words, "of the council," to designate the capacity in which he acted; and after that date the words, "Justice of the Peace." 8 Coll. N. H. Hist. Soc. pp. 41, 51, 52, 65, 67, 101, 111; 2 Prov. Pap. 72. The statutes also recognized the existence of justices of the peace by assigning judicial duties to them similar to those that had previously been placed upon magistrates and councilors. By the Cranfield Code, so called, it was enacted "that every justice of the peace in the respective town where he dwells shall have power hereby to hear and determine any civil action where the debt or damages exceed not forty shillings," subject to a right of appeal "to the next court of pleas or to the governor and council." 1 Laws (Batchellor's Ed.) p. 72, § 23. This jurisdiction in civil cases, except cases in which the title of land was concerned, was continued down to the time of the adoption of the constitution, and for some time afterwards, with the exception of about...