State v. Welch

• Decision Date: 10 February 1887
• Citation: 8 A. 348,79 Me. 99
• Parties: STATE v. WELCH and another.
• Court: Maine Supreme Court

8 A. 348

79 Me. 99

STATE

v. WELCH and another.¹

Supreme Judicial Court of Maine.

February 10, 1887.

On exceptions by respondents from superior court, Cumberland county, to the ruling of the presiding judge overruling their demurrer to the following complaint:

"COMPLAINT.

"State of Maine—Cumberland, ss.: To the recorder (the judge being absent from the court-room) of our municipal court for the city of Portland, m the county of Cumberland: Ezra Hawkes, of Portland, in said county, competent to be a witness in civil suits, on the twenty-fifth day of March, A. D. 1886, in behalf of said state, on solemn affirmation, complains that he believes on the twenty-fifth day of March, in said year, at said Portland, intoxicating liquors were, and still are, kept and deposited by James Welch and Daniel Welch, of Portland, in said county, in the shop and its appurtenances situated on the northerly side of Pleasant street, in said Portland, and numbered 1 on said street, and occupied by said James and Daniel Welch, said James and Daniel Welch not being then and there authorized by law to sell liquors within said state; and that said liquors then and there were, and now are, intended by said James and Daniel Welch for sale in the state, in violation of law, against the peace of said state, and contrary to the form of the statute in such case made and provided. And the said complainant, on his solemn affirmation aforesaid, further alleges and complains that the said James Welch has been before convicted in the municipal court for the city of Portland, to-wit, on the fourth day of May, A. D. 1882, of unlawfully keeping and depositing in this state, in said county of Cumberland, intoxicating liquors, with the intent that said liquors should be sold in this state in violation of law, against the peace of the state, and contrary to the form of the statute in such case made and provided."

George M. Seiders, Co. Atty.for the State.

W. F. Lunt, for respondents.

VIRGIN, J. The defendants, under their demurrer to the complaint, object that it was made on affirmation, and hence is not a "sworn complaint," which section 40, c. 27, Rev. St., on which it is founded, designates. The answer is: A warrant may be issued "when supported by oath or affirmation," (Const, art. 1, § 5,) and inasmuch as the word "'oath' includes affirmation, when affirmation is allowed," (Rev. St. c. 1, § 6, cl. 12,) a "sworn complaint" includes one made on affirmation, when the complainant is allowed to affirm. In the Revision of 1883 the commissioner and legislature substitute "sworn complaint" for "complaint upon oath or affirmation," in Rev. St. 1871, c. 27, § 35. Moreover, "he may affirm, when required to be sworn, and is conscientiously scrupulous of taking an oath." Rev. St. c. 1, §7. "A person is required to be sworn" when he makes a complaint under this statute, for he cannot make it in any manner other than on oath or affirmation. It would be hypercritical to hold that "one conscientiously scrupulous of taking an oath" could not lawfully...