The Portland daily press., 1885-03-14

BEFORE JUDGE GOULD.
FRlDAY-Judge Gould re,dered his decision In
the case against Thomas Burke. Mr.. Munson's first
case ubder the nuisance process, which was con-
tinusd from March 18th. The Judge DISCHARGED
Burke aud read the following opinion:
This warrant was issued under the provisions of
Eectwn |. Of chapter II of the Revised Sta, utes.
which provides that all places used as houses ~
isins Or Tor the iegai sale or keeping of iutoxi
eatibg liquors. all houses, shops or
png purposes. AID all places of resort where in
toxicsting liquors are kept. sold given away drank
uaspereeu =, any manner not proyded by law.
Cd Ia section 2, being tne mol exceeding
500 or imprisonment in jail cot exceeding one
Ains statute was originally passed in 1858. as
ch y er "a Of she public Jaws Of that year; was
smsnded ty cbapsr l52 OF the public laws OF
1918. and h eaAptsr 2i7 of the pubic laws !, f
1850. Ii has lesI il constant use by the law off-
GERS of e''h county sucs its passage There are no
new ques ti's 4 law presented for the consldera-
tion u the court by the AT bar; but as public
asienti0n has been called To this prosecution in
tesl.s Vet to briefly examine the rules OF law an
Magistrates have jurisdiction of the violation of
auy sLatu 'si.en me offence is no, OF b OH ard
aggsavateu ratuIe anu wheSe "jurisdiction is ex-
PIessiy conferred upon them by law In State VS.
Pierre (66 Ae. z95) il expressly held that map
istratss nas cause such Offenders l. g.. yioJa or
quire tlsn 10 recognize for their appearances At =
hik court, but they caunot pass eent~uce vpon
tnem nis oHence Is beyond the jurisdiction Of
this court. =
In these matters 1t becom es the duty of The
courts II be respondent is be held t0 bail to tnd
TWO iscts; !. ina. ths offence charged in the com
ptssint aDu warrant has been committed z Ihat
There is probable believe that the respou
delt committed sad offence. A learned winter
says, lhe hociDe OF defendant T., trial b, may
tstrate is iot decision that he is guilty. but upiy
mat on the osocutions testimony there is
Cause that he should be tried. d.'-WDarton ON GRIM
Law, vol. 3. chap. ..
IL Cali therefore DO readily sesn that the decision
OF court i the trial OF offence beyond its iurs-
oic hon can nave nc Viiai inhueDce The final pro-
ecutvn OF The offence before the grand Jury where
II inust come for hna decision as Co the hndiup Of
sn Indictment. II iieqnently happens that where
persons are held to bali, by magistrates the grant
jury fail W nd indictmen 3; anu on The o. her h and
very large pruo tion of tie indictments are found
upon matters whicn are noL brought before nuapis-
trates but were taken directly before The yrand iu-
ry. In fAet his has Ceen The customary method of
peceuufe uhuor Ibis sta,ute, b. the law tticers Of
lns counties. WIN the assent aud approval of the
ihe object Of issuing warrant for an offence
Deycnd ine Jurisdict,on Of court is that the re-
hponuent may, II probable cause" IL found be
bed 10 bail, That 1t may be certain that be will he
present 70 answer TO any Indictment which may be
found sgainst him. As the same evidence must
De used IN the preliminary hearing that must be
relied upon 70 procure the indictnent it must fre-
Qucntly work Hn injustice to the State by al m it,
Ing the respondent TO know the hature of the evil
deuce against him, and SO putting hin his guard
Ihe complaint in This case charges that Thomas
Burke of Portland ia said county on the 18th day
.
times between he 18th day of January aforesaid
ano thu day OF the plah ing Of this compaut 10 VIII
the llth day OF March, 1885, at Portland aiore-
raid, In lhe county aforesaid, did knowingly, vii
fully, and without having any legal appointment or
authority therefor, keep and maintain q common
NUISANCE, to Wiz a certain shop in Portland afore-
ssid then and on said other days and lines there
BY him. the said Burke used for the Illegal sale and
illegal keeping .or sale OF Intoxicating LIQUORS. 10
the great damage and common nuisance OF All ci III
zens OF SAID STATE against The psace of said State
anu 10 tie form of The statute in such
made and provided.
1he leading in this State upon this subject is
State Vs. Lang (63 Me. zl5). lu order to hoiu this
respondent W bail the court must lind that a GER
TAIN shop was used for The illegal sale and keeps
OF Intoxicating liquors. aud that there is probable
cause 10 believe that the respondent Burke know
ingiy and wiifnliy kept and maintained said shop
20 ILLEGALLY used. Botn facts must be proven or the
case fails.
ILe oujy evidence before the court showing or
tending TO show the Keeping or "rnalntatniI,e''
was that On january 9th, the time of the search
and seizure, he vas "rso feet from the bar
and apparently coming from behind it;' that s,aJ
tnss time there were eighs ten others in the
room, some leaning agaiust the bar some against
the walls; They al, including the respondent left
soon sfter the officers entereu." This being about
one baJf the evidence produced at the Trial of the
search and seizure complaint the balance not being
offered al this gIiaI. All The other evidences offs ed
was that the respondent has been seen several
times III and about The shop, each time with hers,
since said 18th d,ss of January
NO one Would contend for moment that the
respondent could be foubd guilty on The above
evidence. Is IL sufficient to Justify the court in
nndsng prVbab c cause? We believe not. Ii 10
too vsEns ana uncertain: The complaint must iail
tor VI mt OF evidence: The respo dent is found not
guilty, AID Is ordoi ed to be discnaTged.
Jehnis Johnson. lntoxication. Fined s4 and
hall cukt.
Kale Dunphy, John Haloran. Liquor nui sauce.
Hsspopuent discharged.
Michssi Fiahsrty. Liquor nuisance. Bound over
70 lhc GRAND Jury In tho sum IF $500.