State v. McConnell

Citation70 N.H. 158,46 A. 458
PartiesSTATE v. McCONNELL.
Decision Date16 March 1900
CourtSupreme Court of New Hampshire

Exceptions from Merrimack county.

Robert McConnell's motion to dismiss an indictment against him was denied, and he excepts. Exceptions overruled.

Indictment to recover a forfeiture of $15 for keeping a dog without a license. The defendant moved to dismiss the indictment for the following reasons: (1) Because the statute points out a particular mode to recover the forfeiture, viz. by complaint to a justice or a police court. (2) Because by force of sections 10, 11, c. 257, Pub. St., no indictment can be found in said case within one year after said forfeiture accrues, and the forfeiture in this case has not accrued one year. (3) Because the defendant has already been subjected to the expense and trouble of a prosecution in the police court of the town of Pembroke for this forfeiture upon complaint of the officials of the town of Allenstown, and, being arraigned upon said complaint, and a hearing had, said court, although it had jurisdiction to hear and determine said case, neglected and refused so to do, and instead thereof unlawfully and without right ordered the defendant to recognize for his appearance at this court, thereby causing him great expense and delay, and depriving him of his right to have said cause speedily and cheaply determined. (4) Because the statute upon which this indictment was founded was repealed by chapter 31, Laws 1899. The court, pro forma, denied the motion, and the defendant excepted.

George M. Fletcher and Sargent & Niles, for the State. Almon F. Burbank, for defendant

PARSONS, J.Chapter 60, Laws 1891 ("An act to prevent the destruction of sheep and other damages by dogs"), imposes for violation of its various provisions a fine of not less than $3 nor more than $50 (section 9); a fine of $25 (section 21); and a fine of $100 (section 22). Section 8, under which this indictment is found, is: "Whoever keeps a dog contrary to the provisions of this chapter shall forfeit fifteen dollars, five dollars of which shall be paid to the complainant, and ten dollars to the treasurer of the city or town in which the dog is kept." Section 24 is: "All fines and penalties provided in the preceding sections relating to dogs may be recovered on complaint before a police, district, or municipal court, or (trial) justice in the town or county where the offense is committed." When imposed as a punishment for a statutory offense, there is no substantial difference between a fine and a forfeiture. "A fine signifieth a pecuniary punishment for an offense." Co. Litt. 126a. A pecuniary punishment called a "forfeiture" is equivalent to the same pecuniary punishment called a "fine." Ex parte Alexander, 39 Ma App. 109; Com. v. Avery, 14 Bush, 638; U. S. v. Mann, 1 Gall. 178, Fed. Cas. No. 15,718; Maryland v. Baltimore & O. R. Co., 3 How. 534, 552, 11 L. Ed. 714. A crime or misdemeanor is an act committed in violation of a public law either forbidding or commanding it (4 Bl. Comm. *5), which the state punishes in a criminal proceeding in its own name (1 Bish. New Cr. Law, § 32). "Thus, a sale of intoxicating liquor without license is a criminal offense when a statute prohibits the sale under a penalty recoverable by indictment; but otherwise when the proceeding is by action of debt, a suit on a penal statute being civil." Id.; Hitchcock v. Munger, 15 N. H. 97. Whether the proceeding is to be deemed civil or criminal depends upon the form permitted, not upon the question whether the penalty prescribed is denominated a fine or a forfeiture. State v. Pate, 44 N. C. 244. The terms appear to have been used without discrimination in the statutes. Provisions are to be found for the recovery of a forfeiture by indictment and of a fine by action of debt. State v. Marshall, 64 N. H. 549, 15 Atl. 210; Pub. St. c. 1, § 9; Id. c. 108, J 18; Id. c. Ill, §§ 2, 6, 12, 14; Id. c. 126, §§ 22, 23; Id. c. 127, §§ 13-16, 23, 24; Id. c. 270. f 14. While, in the absence of special provision, pecuniary forfeitures are recovered by an action of debt, and fines by information, indictment, or complaint (State v. Marshall, supra), since the question whether a proceeding to enforce a pecuniary punishment is civil or criminal depends upon the nature of the proceeding, and not upon the word used in describing the penalty, the remaining question is as to the character of the proceeding permitted under section 24 of the act,—complaint before a police court or justice. "Criminal proceedings before a Justice or police court shall be begun by complaint" Pub. St. c. 248, § 9. "Fines are imposed by the sentence of a court of criminal jurisdiction, in a prosecution begun by indictment or information, or upon complaint before a justice." Pub. St. c. 256, § 1. All tbe penalties imposed by the act under consideration, with the exception of section 8, are denominated "fines." The proceeding to collect such fines is criminal in form and in fact State v. Marshall, supra. The use of the word "forfeit" in section 8 is insufficient to make the language used in section 24 properly descriptive of criminal proceedings, and in the case of all other penalties referred to, interpretable only as criminal, open to the construction that a civil proceeding was intended in the particular case. The legislature intended criminal process for the enforcement of each punishment prescribed. State v. Jameson (N. H.) 43 Atl. 592, was decided upon the ground that failure to comply with the provisions of Act 1891, c. 60, is a crime, and the process to enforce the penalties therein provided is a criminal proceeding. The views therein expressed are affirmed. The act appears to have been taken bodily from the statutes of Massachusetts, without care to make any change to conform to different conditions in this state. We have no district or municipal courts, or trial justices, as those terms are understood in Massachusetts. But the language must have been understood to mean what it did in the Massachusetts statute,—that the penalties prescribed, whether fines or forfeitures, should be recovered by criminal proceedings in the name of the state, before courts of competent jurisdiction. The supreme court has original jurisdiction of all criminal proceedings. Pub. St. c. 248, § 1. The concurrent jurisdiction of police courts and justices in minor offenses does not oust the supreme court of its jurisdiction. State v....

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18 cases
  • State v. Corron
    • United States
    • New Hampshire Supreme Court
    • December 5, 1905
    ...in the application of the principles of res adjudicata; but where the form of the proceeding and not its nature controls (State v. McConnell, 70 N. H. 158, 46 Atl. 458), there appears to be insurmountable difficulties in the application of estoppel by verdict between actions civil and crimi......
  • Holliman v. Cole
    • United States
    • Oklahoma Supreme Court
    • June 26, 1934
    ...offense, and a pecuniary punishment called a "forfeiture" is equivalent to the same pecuniary punishment called a "fine." State v. McConnell, 70 N.H. 158, 46 A. 458. ¶15 The words "fine" and "forfeiture" in the statute are often interchangeably used; and where "forfeiture" is employed to de......
  • Holliman v. Cole
    • United States
    • Oklahoma Supreme Court
    • June 26, 1934
    ...offense, and a pecuniary punishment called a "forfeiture" is equivalent to the same pecuniary punishment called a "fine." State v. McConnell, 70 N.H. 158, 46 A. 458. words "fine" and "forfeiture" in the statute are often interchangeably used; and, where "forfeiture" is employed to denote pu......
  • United States v. Tom Wah
    • United States
    • U.S. District Court — Northern District of New York
    • March 12, 1908
    ... ... 900. These cases hold that, while the ... commissioner cannot punish the witness for contempt, the ... court appointing him may. In the state of New York the courts ... of record may appoint referees and refer cases to them to ... hear and report, or to hear and determine. Such courts may ... 359, 44 A. 446; Wiseman v. McNulty, 25 Cal. 230, ... 237; Roblee v. M.L. Ass'n (Sup.) 77 N.Y.Supp ... 1098, 1100; State v. McConnell, 70 N.H. 158, 46 A ... 458; Van Beuren v. Digges, 52 U.S. 461, 477, 13 ... L.Ed. 771 ... It is ... true that expressions to the ... ...
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