The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-08

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In s'atuts In derogation of tho common Law the
Interpretation is 10 be acc rdiag 70 wns wdtten
The court is Mt TO speculate on woat are the evi
to be provided against. and thus come to couciu-
sion In conformity TO what . liberal and munidoent
spirit or perhaps, more enlightened judgment
than that displayed In the Legislative provision,
would app,tve.-kue vs.. Alter, g. Dsnio, l22
4th II the last sentence In the section under con-
side alton were even repugnant the whole OF the
preceding provisions and se5tences-not tbat 1t Ii
60 then the later part OF the section prevails
end repeals A. ch precfdee. and is repugnant to
it-Harrir gton vs. Trustees Of Rocheter 10 Wend.,
p555. NY third CONT s tie burthen Of ,of that the
liquor sold was not imported liquor is upon the pro-
secutcr. The exception being stated in the enact
ing clause u VIII be necessary TO negative Il, in
order That the description OF the offence may In all
respects correspond with the statute. g Barbour,
S. G. r., 3l3; K-nt Com. VOL p. 463; ale, 10;
Burr, l4S; Fost, 430; East, GAG and notes;
7. r., IA; Lev. 26; Com. Dig. Statutes; Chit;y
on Pieac,ng, 357; Sta'e Va. Munger Is Vermont r.,
290 The presumption Of law is ever favor of tae
Innocence Of party charged with an offence there
fore the law presumes the defendant guiities Of
having done the act which makes the offsnce.-Ros.
GOES Grim. Evidence, 20. Thus, on an indictment
under AZ Geo. Ill, C. 107, which made it felony to
course deer in an enclosed ground without the con.
sent Of the owrer Of the deer it was held that proof
OF the consent not having been given must have
been produced on the part Of the prcsecutoe.-Ib.
49, Mr.. Justice Butler said i do not know any
cose for penalty on statute where there In an ex
ception in the eractDg clause thas the plaintiff must
not show that the party who he sues La not within
IT," So, in criminal case LORD Mansfield said:
"Whst comes by way Of proviso in . statute must
be intiated on for the purpose Of defence by the
party accused but where exceptions are In
the epactiDg part OF the law, 1t must, in
the indictment, charge the defendant Is not
within them Dwarrison Statutes, p. 20.
Fost. 43O, l East 6G4; East P. c., 1O7. The party
charged with violation Of per al statute is bound
to set forth specisy the facts which he relies to
constitute the onence.-Bgelow's johnson, l3 John
r. p. 429. Knowles Vi. The State Of Connecticut;
Days r p. l03; Rex VS.. Jarvis, Bsrrows, I49.
This being penal statute, IT there be any doubt
whett or the worcs, this section sha not apply to
liquor he right to sell which In this State is given
by any law or treaty Of the United States, includes
hquois domestic and imported, then the decision
must be in favor Of the defendant. Where there IS
such an ambiguity In penal statute as to leave
reasonable doubt OF it's meaning, IL Is the duty of
the Court not to inflict the penalty--Case of The
Enterprise Paine 80. II there be any doubt in the
case penal statutes ore 70 be so construed as not to
multiply offences unless the construction be sup.
cation -Conmon wealth vs. 6cComber, Mass. r.
354. Same VI. Barlow, 4 H., 439. II statute
creating or increasing penalty be capable Of two
contradictions, that construction which operates In
favor Of liberty il to be adopted.-Commonwe wealth
". Martin, II Mass, 359. Same Vs. Kenston, Peck,
42O.
ARGUMENT FOR THE PROSECUTION.
Col. Sever spoke as follows for the prosecution =
Your Honor's decision, said he, will be upon the
jurisdiction which the law gives you In cases OF
this kind under the act Of April o. 1885, az limiting
your action merely 70 that Of sitting or commit
ting magistrate. The criterion by which your
honor is 20 be governed as such sitting magistrate
in this case will be found laid do vn by the eminent
authority which the gentleman has j1st read In the
decision Of Wheatons, az given BY Chief Justice
Msrshall, who decided that the duty of com nit.
ting magistrate when an offence Is charged, Is to
ascertain II the facts sworn to In the affidavit upon
which the warrant Of arrest has been issued are
such as TO induce the mind Of the magistrate to
believe there is probable cause that the offence
charged has been committed. In arriving at this,
snd in the exercise OF Jour duties, you are not
bound to bear any justifying or rebuttlng evidence
from the defendant. Your duties are snalsg ,us
to those Of q Grand Jury, who hear only
one side of the question. and If the proof
s sufc ent to induce you to believe that an offence
eeaintt the penal law has been committed, you are
bound 70 commit the parties for trial In this case
tre affidavit has been presented, pursuant to the
provisions OF this act It has been stated under oath
that the man received brandy and paid Mr.. Smith
the refor the ney in prerence of the witness The
act upcer consideration passed by the last Legsls
ture 10 the frat section prohibits the sale and giving
away or dispOsDg of ali intoxicating liquors Of every
description, except as thereafter In the same It pro
vided for the sale OF 1t for mechanical medicinal or
sscramental purposes. One clause Of this section
says that il shall not apply to liquors. not imported
liquors. 80 the gentleman cOntends-tnere is no such
language In the statute-the right tn sell which is
given by any law or treaty OF she United States.
The gentleman makes this strong point--that this
liquor Mr.. Smith had right {, sell, because IL was
in ported The gentleman contends th the rests
upon the proset uton to prove by competent testmo
n.y. that the quor sold Ia not within the provisions Of
this section OF the law In my humble Judgment,
that proof rests upon the defendant and admitting
the legal theory which he inv0kes, nevertheless
defer ia bound to prove tina. he has the right to
sell this liquor, by reason Of the fact that II vas
imported. Now, by no possible application, no
legal or sound application OF his theory, can he
throw the onus upon the side OF tho prosecution.
PR Trrrs MAJ Out tha
defendant; he ssauds here charged With violation
Of the law, and sets up AZ the main point Of his
defence that the prosecution must prove that he had
not the right to sell this liquor. The prohibition Is
In the broad language OF the statute and the fourth
section imposes upon him penalty for violating
the first section. Your Honor has, therefore,
only to decide whether you will commit Mr..
Smith for trial to the Court Of Sessions.
i would further remark to your Honor, that
although there Is no positive prohibition In the
constitution, or any law sm aware Of TAX ing from
your honor the discretionary right to Judge OF the
coIstitusioDalify Of an act, yet 1t is sound aud
judicial practice for magistrate never to decide
the constitutionaiify Of a law, when he Ia called
upon TO do 30, because IL belongs more properly to
an appellate court. The gentleman also contends
that this ing penal statute 1t must b, construed
laid down and adhered TO? What does the counsel
mean, when he says, being penal statute IL must
be construed strictly 1 understand that nothing
more s meant than that the court shal not enlarge
offences that are not embraced within the letter Of
the Law. Now, you can take nothing by infe-
renee in any statute 1t s is only in the application
Of ii to facts that come no before the courts
that this latitude, this ltberality Of construc
ton, Is to be allowed. Starkey on Evidence says,
that he who possesses the peculiar knowledge
Of q fact necessarily involved in charge
or accusation is bound 70 prove il. Well, now, Ia
there not a fact involved In this? What does the
defendant affirm? That he has right TO sell that
liquor. Counsel here read the decision of the Su
preme Court Of the United States in the celebrated
license case. . Howard, United States Reportsl
This law (continneo Colonel 6ever) IL police resu
lation, and your Honor knows that the police powers
Of regulation are unlimited. The ngut lies with
u State Of New York, not with the United States,
to regulate the sale Of liquor II posse the right
TO regulate that as Il does TO regulate the sale OF
unhealthy meat, poisons, and all other deadly sub
stances. IL has the right TO prohibit the sale and
traffic in all Il tese and 70 say who shall and who
shall not sell them. The power Of Congress ca, 90
no further than 70 the transit Of the article
through the Custom House 10 the honse OF the
purchaser. The right to regulate It's sale after
that belongs to the Ssa'e. This Law may be