
    Case 2S—INDICTMENT—
    January 28.
    White v. Commonwealth.
    APPEAL EROM OWEN CIRCUIT COURT.
    The only punishment which can be inelicted eor a riot, rout, or breach oe the peace in any court of this state is a fine not exceeding one hundred dollars or imprisonment not exceeding fifty days, or both, at the discretion of the jury.
    
      
    
    CITED
    Revised Statutes, chap. 28, art. 18, 1 Stanton, 403.
    Revised Statutes, chap. 28, art. 1, sec. 3, 1 Stanton, 371.
    Hardin, 99y McCullough v. Commonwealth.
    Wharton’s Criminal Law, sec. 2497.
    General Statutes, sec. 3, p. 318; art. 18, pp. 349, 350.
    Ashmead, 146, Commonwealth v. Edwards.
    Criminal Code, secs. 661, 662.
    2 Dana, 417, Gregory v. Commonwealth.
    
      4 Blacks tone, 146, 150, note 17.
    3 Hawkins, 381, State v. Langford.
    1 Greenleaf on Evidence, sec. 446.
    16 Ala. 45, O’Neil v. State.
    John Rodman, Attorney-General,.....For Appellee,
    CITED
    15 B. Mon. 532, Commonwealth v. Kennedy.
    Criminal Code, secs. 121, 128, 129.
    General Statutes, -350.
   JUDGE COPER

DELIVERED THE OPINION OF THE COURT, JUDGE PRYOR DISSENTING.

George White, having been indicted, found guilty, and adjudged to pay a fine of two hundred and fifty dollars for a breach of the public peace, has appealed to this court for a reversal of that judgment.

The only question in the case which seems to us to present any difficulty grows out of the amount of the fine imposed.

Section 3 of article 1, chapter,29, of the General Statutes, provides that “a common-law offense for which punishment is prescribed by statute shall be punished only in the mode so prescribed.”

Section 4, article 19, of the same chapter, provides for the punishment of persons guilty of a riot, rout, or breach of the peace, and fixes the punishment at a fine not exceeding one hundred dollars, or imprisonment not exceeding fifty days, or both, at the discretion of the jury.

Section 6 of the same article provides that “nothing in this article shall be construed to repeal the common law in relation to riots, routs, affrays, unlawful assemblies, or breaches of the peace, which offenses may be punished as and by the common law as heretofore.”

Under section 3 of article 1, if it stood alone in the statute, it would be clear that no other or greater punishment than that prescribed by section 4 of article 19 could be inflicted upon any person convicted of a breach of the peace; but section 6 of the latter article having declared that that offense may be punished as and by the common law, it is argued that it leaves the common law in force as to the penalty; and that as by the common law a breach of the public peace was punishable by fine and imprisonment at the discretion of the jury, the judgment rendered in this case, although for more than the statutory penalty, is authorized by the common law. The apparent conflict between section 3, article 1, and section 6, article 19, has led us to look into the history of legislation in this state on this subject; and this, we think, will remove all doubt as to the proper interpretation of section 6.

By an act of assembly, passed in 1802 (2 Statute Laws, 1390), jurisdiction was given to justices of the peace to try and punish persons guilty of a breach of the public peace; and it was provided by an act passed at the same session that “whereas a mode of prosecuting and punishing offenses has been provided by act of assembly, differing in some cases from that which had been before provided by the common law or by English statutes, be it enacted that in such cases the provisions of the common law or the English statutes shall be and the same are hereby repealed.”

At the common law justices had no jurisdiction to try or to punish offenders of any class, and those guilty of a breach of the peace were punishable under indictment by "fine and imprisonment by the act first quoted. (2 Statute Laws, 1390.) A mode of prosecuting and punishing offenders against the public peace was provided by statute, and therefore by the second act (1 Statute Laws, 533) the provisions of the common law in such cases were repealed. After this it was clear that as the statutory mode of prosecuting before justices was by warrant, the common-law mode of prosecuting by indictment was repealed; and that as the punishment provided by statute Avas different from that provided by the common law, the punishment proAÚded for by the latter was abolished. The effect of this was to give justices of the peace exclusive jurisdiction of prosecutions for breaches of the peace, and to make that offense no longer indictable. To remedy this defect in the law an act was passed in 1809 (2 Stat. Laws, 1391), providing “that the common law in relation to riots, routs, unlawful assemblies of the people, batteries, affrays, and breaches of the peace shall be and the same is hereby revived and declared to be in full force, and that any person or persons guilty of any of the aforesaid offenses may be indicted and punished as at the common law as heretofore, any law to the contrary notwithstanding.”

When viewed in the light of the former two acts of 1802 it is clear that the act of 1809 was intended to give the circuit courts jurisdiction concurrent with justices of the peace of prosecutions for the offenses enumerated in the latter act, and not for the purpose of subjecting offenders to a greater punishment in the one court than in the other.

Section 6 of article 19 of chapter 29 of the General Statutes is a substantial re-enactment of the act of 1809, and is an almost literal transcript from the Revised Statutes, and was no doubt inserted in both to prevent the preceding sections, which gave justices jurisdiction of prosecutions for breaches of the peace, from being construed, as the acts of 1802 would have been without the act of 1809, as giving to justices exclusive jurisdiction.

Section 4, article 19, chapter 29, General Statutes, prescribes a punishment for breaches of the peace; and if it be held that under section 6 of the same article a greater punishment than is thus prescribed can be inflicted under indictment in the circuit court, as and by the common law, the latter section is brought into direct conflict with section 3, article 1, which provides that a common-law offense, the punishment of which is prescribed by statute, shall only be punished in the mode so prescribed.

This construction is not only in harmony with past legislation on the subject, but it harmonizes section 6, article 19, with section 1, article 1, which could not otherwise be done; and it also prevents the legislative anomaly of providing different punishments for the same offense, which we can not presume the legislature intended.

We are therefore of opinion that the court erred in instructing the jury, in substance, that if they found the appellant guilty, they might assess his fine at their discretion. For this error alone the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Judge Pryor

delivered the .following as his opinion, dissenting FROM THE MAJORITY OF THE COURT:

There is no conflict, in my opinion, between section 3 of article 1 and. section 6 of.article 19 of the General Statutes. Section 3 of article 1 provides that “a common-law offense for .wdiich punishment is prescribed by statute shall be punished only in the mode so prescribed. (General Statutes, p. 318.) Section 1 of article 19, General Statutes, p. 349, provides that “if a riot, rout, unlawful assembly, affray, or breach of the peace be made or committed, the same may be suppressed, and the persons guilty arrested by any judge of the circuit or county court, police judge, or justice of the peace, sheriff, marshal, or constable.” By a subsequent section of the same article the offender is entitled to a trial at a period not exceeding five days from the arrest, unless bond with surety is executed, conditioned, among other things, that the party charged will appear on the day and at the place fixed for trial, etc. The third and fourth sections of this same article give to the party charged the right of trial by jury, and limit the punishment, if guilty, to a' fine not exceeding one hundred dollars and imprisonment not exceeding fifty days, or both so fined and imprisoned, at the discretion of the jury.

Section 6 of the same article, said, in the opinion rendered, to be in apparent conflict with section 3 of article 1, reads as follows: “Nothing in this article shall be construed to repeal the common law in relation to riots, routs, affrays, unlawful assemblies, or breaches of the peace, which offenses may be punished as and by the common law, as heretofore.” It is conceded, if there was no other punishment except that of a fine of one hundred dollars and imprisonment, as prescribed by section 4 of article 19, that by reason of section 3 of article 1 the mode and extent of punishment would be. regulated by section 4, and the fine could not exceed one hundred dollars.

Section 6, however, of the same article above quoted imposes the common-law punishment, and hence where a party is tried under an indictment in the circuit court for either of the offenses enumerated, if guilty, he may be fined and imprisoned at the discretion of the jury. If tried by a court of limited jurisdiction, such as that held by a justice of the peace or by a circuit judge out of term time, and on a mere warrant, the fine is limited to one hundred dollars, and no greater fine can be imposed. The statute allows the commonwealth, the party aggrieved, to adopt the remedy and select its own forum. If in a court of inferior jurisdiction, the recovery is limited; if in a court of general jurisdiction, the party charged with the offense may be indicted by a grand jury and punished as and by the common law.

In enacting these statutes the legislature had in view the jurisdiction of the courts in which the party might be called to answer, and saw proper to withhold from inferior tribunals such unlimited power over the rights of the citizen. Justices of the peace originally had no such jurisdiction, and when conferred it was limited in penal as it has been in civil cases.

The two acts are not in conflict with each other, the only difference being that in the one case the jurisdiction is limited and in the other enlarged, or the legitimate jurisdiction retained of the circuit court. There is no reason why the jurisdiction of justices of the peace and the circuit court may not be regulated by statute in cases of misdemeanor as' well and in like manner as in civil actions. If maintained that the penalty of one hundred dollars is fixed by statute, it is insisted that the common-law penalty and mode of punishment is also adopted by the same statute. ,

Section 3 of article 1 is “that a common-law offense for which punishment is prescribed by statute shall be punished only in the mode so prescribed.” In order to apply this rule to the present case, as well as to make all the sections referred to harmonize, we have only to determine that the legislative intent was to give greater jurisdiction in (such cases to the one tribunal than the other. The construction given these statutes by a majority of the court is not sustained by either the legislative or judicial history of the state.

The act of 1802, and subsequent legislation up to the year 1809, abolished the common-law mode of punishment for such offenses, and gave the exclusive jurisdiction to justices of the peace. In the year 1809 the legislature revived the common law in relation to riots, routs, breaches of the peace, etc.; not, as is argued, for the purpose only of enabling the offenders to be indicted or to give the circuit court concurrent jurisdiction, but for the reason that the common-law mode of punishment afforded a more complete and adequate remedy against those who disturbed the public peace.

It is true that a prosecution in an inferior tribunal may be pleaded in bar to an indictment for the same offense; but this is no argument against a jurisdiction that has always attached to the circuit court under similar statutes (except during the interval mentioned in the opinion), and upon a careful examination of the authorities it may be said has never before been questioned in this court.

I therefore dissent from the opinion rendered.  