
    
      The Commonwealth v. Scott.
    (Absent Field and Scott, J’s.)
    I. Qucere, if a person who has been regularly summoned to shew cause why an information shall not be filed upon a presentment found against him by the grand jury, and fails to appear, can, after the information has been filed, move the Court to quash the presentment ?
    
      2. An information for retailing merchandize without a license, con-clu4es by claiming a penalty imposed by the statute. Upon the trial, if the jury find the defendant guilty, they should assess the fine.
    3. If upon a trial on such an information, the jury merely find the defendant guilty, no judgment can be entered on the verdict; but it should be set aside by the Court, and a new trial awarded.
    At the September term 1845 of the Circuit Court of Fluvanna county, the grand jury presented Jordan Scott, a free negro, for selling confectionary, oranges, lemons, &c. within six months last past, the same not being of his own growth, production or manufacture, without license for so doing within the county of Fluvanna. A summons to appear and shew cause against the filing of an information upon this presentment, was regularly served upon Scott, but he did not appear, and the information was filed at the April term 1846. The information set out an act of Assembly, entitled “an act to amend the several laws imposing a tax on merchants and others, and for other purposes,” which provided, that if any person sold goods, wares and merchandize, &c. at any place, either by wholesale or retail, without having first obtained a license, such person should forfeit and pay the sum of 100 dollars, one half thereof to the use of the informer, and the other half to the use of the Literary fund, to be recovered by motion on ten days notice. It then charged that Jordan Scott did, at Palmyra in the county of Fluvanna, on the 31st of August 1845, and at divers other days and times, and at the same place both before and after the said 31st of August 1845, and within six months preceding the September term of the Court in the year 1S45, and without having obtained a license for so doing, according to the provisions and requisites of the statute aforesaid, soil by retail, goods, wares and merchandize of foreign and domestic growth and manufacture, to wit, confectionary, oranges, lemons, &c., not being of his own growth, production or manufacture, contrary to the act of Assembly in that case made and provided, &c. By reason whereof, the said Jordan Scott hath forfeited the penalty of 100 dollars, imposed by the act of Assembly aforesaid.
    At the September term of the Court, the defendant, with the leave of the Court, withdrew the plea of not guilty, which he had filed at the previous term: and he then moved the Court to quash the information for a variance between it and the presentment upon which it was filed; but the Court overruled the motion. The defendant thereupon moved the Court to quash the presentment ; but the Court being of opinion, that inasmuch as the defendant had been theretofore summoned to shew cause against the filing of the information, and had failed to shew any at the proper time, it was then too late to submit a motion to quash the presentment, refused to hear the motion at the then stage of the cause. To both these opinions of the Court the defendant excepted.
    In September 1847 the case was tried, when the jury found “the defendant guilty in manner and form as in the information aforesaid against him is alleged.” The defendant then moved the Court to arrest the judgment, on the following grounds, viz:
    1st. That the defendant’s motion to quash the information, made at September term 1846, before the issue was joined, ought to have been sustained, and not overruled.
    2d. That the defendant’s motion to quash the presentment on which the information was founded, made at the same term, ought to have been sustained.
    3d. That the said presentment is too defective to admit now of a judgment being rendered upon it against the defendant.
    4th. That judgment against the defendant cannot now be rendered, because the information is defective in several particulars, viz: 1st. In varying from the presentment. 2d. In praying judgment for 100 dollars, when a much less fine (if any) would be due. 3d. In purporting to be founded on a statute inapplicable to the case. 4th. In other particulars also.
    5th. That the existing statutes applicable to the case leave it entirely indeterminate what fine should be imposed on the defendant, if any should ; and, therefore, either no fine should be imposed, or the jury should have assessed it.
    And thereupon the Court, with the assent of the defendant, adjourned to this Court, as questions of novelty and difficulty:
    1st. What judgment shall be rendered upon the several grounds of error assigned for arresting the judgment ?
    2d. What judgment shall be rendered upon the motion to arrest the judgment?
    3d. If the judgment is not to be arrested, what judgment shall be rendered on the verdict ?
   By the Court.

As to the first question, it is answered, that no judgment ought to be rendered on the verdict.

As to the second question, it is answered, that the verdict ought to be set aside, and a new trial awarded ; and if on such trial the defendant be found guilty, the jury ought to ascertain the amount of the fine.

It becomes unnecessary to answer any other question or matter on the record.  