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rule of pleading, not resting well on principle; and, in this country, the question has been decided both ways. Even in England the plural form has been ruled to be bad and the singular good? Now, although the punishment is the measure of the offense (there being none where there is no punishment, and it being greater or less according as the punishment is so); and although, therefore, the indictment must set out every element of crime which enters into the punishment,' since otherwise it does not set out fully the offense, the true view as to this question of pleading seems to have been expressed by Lord Denman, thus: “It is the offense which is the subject of indict


1 That the singular form is suffi- of prosecution, and the punishment cient, Strong v. S., 1 Blackf. 193; S. upon conviction. ... The defendv. Wilbor, 1 R I 199, [36 Am. D. 245;] ant cannot be said to act contrary to S. v. Dayton, 3 Zab. 49, (53 Am. D. a statute which prescribes nothing 270;] S. v. Berry, 4 Halst. 374; But to be done, but only fixes the mode man's Case, 8 Greenl. 113. That the of proceeding against, and the measplural form must be employed, S. v. ure of punishment to those who have Moses, 7 Blackf. 244, and King v. S., violated another." pp. 207, 208. In 2 Ind. 523, the judges being appar. the supreme court of Maine, Parris, J., ently unaware of their previous de- drew the distinctions as follows: cision in Strong v. S.; S. v. Cassel, 2 “ Where one statute creates the of. Har. & G. 407. See Kane v. P., 8 fense, and another gives the penalty, Wend. 203; U. S. v. Gibert, 2 Sum- it seems to be settled that an indict

19; Sears v. U. S., 1 Gallis. 257, ment must conclude against the form 259. In S. v. Pool, 2 Dev. 202, a ma- of the statutes. But if there be more jority of the judges held that, where than one statute concerning the same one statute creates an offense under offense, and the first of them was a penalty recoverable in a civil ac. never discontinued, and the latter tion, and another makes it indictable, only qualify the method of proceedtheindictment must conclude against ing upon the former, without alterthe form of the statutes, in the plural. ing the substance of its purview, it But Henderson, C. J., dissenting, said: seems agreed that it is safe in an in“I am inclined to believe that this is dictment on such a statute to con. the rule; that, where it is necessary clude against the form of the statute. to have recourse to two or more stat Where an offense is prohibited by utes to show that the acts imputed several statutes, if only one is the as crimes are in fact so, that is, acts foundation of the action, and the forbidden or duties enjoined, others are explanatory, it is sufficient there both or all the acts must be re to say, against the form of the statferred to.... But it cannot be ute.” Morrison v. Witham, 1 Fairf. said that the defendant did an act 421, 425. contrary to the prohibitions of a stat- 2 Reg. v. Wise, 1 Cox C. C. 80. See ute, when the statute did not pro- Crim. Pro., I, § 606. hibit it; in fact, was silent in regard 3 Crim. Pro., I, SS 79–88, 538_542; to it, and only prescribed the mode II, SS 48, 177, 565, 572.



ment, not the punishment;”I and the doctrine is settled in both countries, that, if the offense is originally at common law, and the punishment is by statute, a conclusion at common law is sufficient.

$ 168. Change of punishment.- Two different punishments for precisely the same offense, with no variations in its elements, and no modifying discretion in the court, cannot, in the nature of things, subsist together. And so are all the authorities to the extent that, in these circumstances, a milder new punishment repeals a severer old. We have judicial intimations leading to the inference that the converse is not true; but if by a more recent enactment a heavier punishment than the old is established, a prisoner may be sentenced under either law. If the new law defined the offense, omitting anything, however slight, which was in the old definition, this would be so; but, where nothing of this sort intervenes, it is impossible the two different punishments should stand together. Therefore the only admissible view in principle, and the better in authority, is that the new punishment, whether greater or less than the old, repeals it by force of the repugnance.? Where, by two secv. Williams, 14 Law J. (N. S.) Indiana where there are no common

law crimes. For, the reader will no V. Williams, supra; Williams tice, the former statute would have 4. Reg., 7 Q. B. 250, 1 Cox C. C. 179; supported the indictment, the same

Chatburn, 1 Moody, 403; Ful- as would the common law in the case

S., 1 Blackf. 63; Rex v. O'Brian, of a common-law offense; since, if 7 Mod. 378, 379; Rex v. Jones, 1 Leach, the former statute had failed to pro

v. Bethel, 6 Mod. 17; S. v. scribe a penalty, then, as we have Evans, 7 Gill & J. 290; Williams v. seen, ante, $ 138, the offense created Reg., 10 Jur. 155; Russell v. Com., 7 by it would have been punishable at S. & R. 489. See S. v. Flanigin, 5 Ala. the common law. 477 ; S. v. Jones, 5 Ala. 666; Rex v. 3 Ante, SS 156a, 158. Brown, 2 East, P. C. 1007. And see 4 Henderson v. Sherborne, 2 M. & contrary dictum in Castro v. Reg., 6 W. 236, 239; Smith 2. S., 1 Stew. 506; Ap. Cas. 229, 232. In King v. S., 2 S. v. Thompson, 2 Strob. 12, [47 Am. D. Ind. 523, the court, after laying down 588;] S. v. Whitworth, 8 Port. 434; the doctrine that, where one statute U. S. v. Jones, 3 Wash. C. C. 209; S. v. defines the offense and another pre- Upchurch, 9 Ire. 454; S. v. Ripley, 2 scribes the punishment, the indict- Brev. 300; Burton v. Watkins, 2 Hill ment must conclude in the plural, (S. C.), 674. adds: “This is no doubt correct, for 6 Harrison v. Chiles, 3 Litt. 194; S.

Obvious reason that neither stat- v. Taylor, 2 McCord, 483; Reg. v. Pugh,

Would of itself support the prose- 6 Mod. 140, 141. cution." This doctrine can be just in

6 Post, SS 171, 172. principle only, if at all, in a state like 7 Nichols v. Squire, 5 Pick. 168;

1 Reg.

M. C. 164.

2 Reg.



ler v.

174; Reg.

the ute

" 2


tions of one statute, jurisdiction over the same offense was given to different courts, and different punishments were prescribed, it was held that only the milder could be ordered by either tribunal. Still,

$ 169. Remedies differing with punishment.— Several concurrent remedies “of a different nature,” ? carrying with them their respective penalties, may be provided for one offense; and each remedy may stand, penalty and all, without conflicting with the others. “Therefore

“— Indictment or other process for nuisance.—“Keeping of swine in the city, etc., being a nuisance at common law, the prosecutor is at liberty either to proceed by way of indictment for the nuisance, or to take that more expeditious remedy which is given him by the act of parliament, by sale of the swine." + So a statute making it penal to “injure a mill-dam” does not take away the common-law right to abate the nuisance, if the mill-dam becomes such. And a statute providing a specific method of abating a nuisance does not abrogate the commonlaw method.

Why? — There is no repugnance between provisions of different natures for the cure of a common evil. The case is substantially within the doctrine of the last sub-title.

$ 170. Remedies of different natures.-Nice questions arise as to whether or not two remedies are so far different in their natures that they may stand together. The common case is —

Civil and criminal.— A civil action for private redress, and an indictment for public, are of different natures, and they may Perine v. Van Note, 1 Southard, 146; 81 Mod. 34, note; Rex v. Jackson, Buckallew v. Ackerman, 3 Halst. 48; Cowp. 297; Reg. v. Wigg, 2 Ld. Raym. Carter v. Hawley, Wright, 74; Com. 1163; Jennings v. Com., 17 Pick. 80; v. Kimball, 21 Pick. 373; Sir John Crittenden v. Wilson, 5 Cow. 165; (15 Knight's Case, 3 Mod. 117; Attorney. Am. D. 462;] S. v. Rutledge, 8 Humph. General v. Lockwood, 9 M. & W.378, 32; Hodges v. S., 8 Ala. 55; Rex v. 391. See Clarke v. S., 23 Miss. 261; S. Moor, 2 Mod. 128; Simpson v. S., 10 v. Ward, 6 N. H. 529; Sullivan v. P., Yerg. 525; Pitman v. Com., 2 Rob. 15 III. 233; post, SS 169–171. In Penn. (Va.) 800; U. S. v. Halberstadt, Gilpin, sylvania this has been so provided, 262; Renwick v. Morris, 3 Hill (N. Y.), substantially, by statute. Com. v. 621, 7 Hill (N. Y.), 575. Evans, 13 S. & R. 426; (Com. v. Hutz. 4 Reg. v. Wigg, 2 Ld. Raym. 1163. inger, 35 P. L. J. 361.)

5 S. v. Moffett, 1 Greene (Iowa), 247. 1 Scrimegrour v. S., 1 Chand. 48. Wetmore v. Tracy, 14 Wend. 250,

2 Lord Abinger, in Henderson v. [28 Am. D. 525.] Sherborne, 2 M. & W. 236, 239.

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always be concurrent, and neither will be a bar to the other.' But

Penal action and indictment.- Can a statutory penalty, imposed for public redress and made recoverable by an action civil in form, and an indictment for the same wrong, subsist thus together? In a sort of general sense it may be said that they can. Yet the books are not in all respects so distinct on this question as one might wish. So let us look a little into the particulars.

Presumed legislative intent. - In New Jersey a statute having prohibited a thing under a penalty of $10, recoverable in an action of debt by any one suing for it, and a subsequent enactment having made it indictable and fixed the punishment at a fine of $20, the former provision was held to be repealed by the latter, because such, it was deemed, was the legislative intent. 3 But this case does not hold that there was any irreconcilable repugnance. On the other hand,

Indictment and summary fine for nuisance (Obstructing way).— The Vermont court held that a statutory provision imposing a fine of $7, to be recovered by complaint before a justice of the peace, for placing any obstruction in the highway, was merely cumulative, not interfering with the commonlaw remedy by indictment; but whether it superseded the common-law punishment, which is the question now under consideration, the court did not say."

$ 171. Two penalties or punishments for one wrong.There is nothing in the nature of things repugnant in laws which provide any number of distinct penalties or punishments — such as fine, forfeiture, imprisonment, and the like for the same wrong. And numerous statutes do so provide. Nor does the nature of things forbid the ordaining of separate proceedings for their recovery. But our written constitutions

to the extent of the provision “that no person shall be subject, for the same offense, to be twice put in jeopardy of life or limb." Hence arise complications of doctrine, and the

5 limits of what is constitutionally permissible are not precisely


1 Crim.



Law, I, SS 264 et seq., 1069. *S. v. Wilkinson, 2 Vt. 480, [21 Am. Crim. Law, I, § 1067.

D. 560.) And see Salem Turnpike & v. Ackerman, 3 Halst. Chelsea Bridge v. Hayes, 5 Cush. 458.


5 Crim. Law, I, S 981.


defined. It is, of course, no objection that the right to prosecute is derived from statutes passed at different times. Again,

Offenses variously aggravated.— A part of the indictable offenses are, like successive circles of different dimensions, included within one another; a robbery, for example, being an assault committed under particular circumstances of aggravation. In these cases an offender may be convicted of either the simpler or aggravated form, at the election of the prosecuting power; except that sometimes the line separating felonies and misdemeanors cannot in this way be passed. The several grades of offense thus appearing have their corresponding punishments, while yet a person convicted or acquitted in one degree is ordinarily exempt from prosecution in another. Hence, if the new statute adds aggravations not in the old law of the offense, and creates a higher penalty; ' or omits an aggravating quality and provides a lower penalty;6 or, if the new statute is applicable to a particular class only of persons, who owe special duties in the matter, the new punishment does


1 P. v. Stevens, 13 Wend. 341; Reg. 526, 35 N. E. R. 119. A civil law imv. White, Dears. 203, 20 Eng. L & posing penalties and forfeitures for Eq. 585; Blatchley v. Moser, 15 usury, and a criminal law punishing Wend. 215. The Illinois court, hold- the same, are consistent and may coing an officer not indictable for tak- exist. Waite v. Bartlett, 53 Mo. Ap. ing illegal fees, said: “A remedy 378. Under a statute authorizing has been provided by the infliction the court to punish by fine or imof a penalty for such acts; but the prisonment, the court has no right to modes of proceeding to enforce such sentence the offender to pay a fine in penaltyare entirely of a civil nature." a certain time, and in default thereof Pankey v. P., 1 Scam. 80, 82. Still that he be imprisoned. Root v. S., there is doubt whether this view is 58 N. J. L. 487, 34 Atl. R. 885. Cf. just. A civil remedy in the nature also S. v. Walters, 97 N. C. 489, 2 S. of a penalty for the offense may well E. R. 539, 2 Am. St. R. 310; Com. v. stand with a common-law indict- Griffin, 105 Mass. 185. A statute imment, the two remedies being en- posing one or both of two optional forceable together. [Remanding de- penalties is not unconstitutional. P. fendant to penitentiary after decision v. Perini, 94 Cal. 573, 29 Pac. R. 1027.] of appeal sentencing him to death 2 Crim. Law, I, 8 780. is not a double punishment. P. v. * Crim. Law, I, § 1054. Brush, 60 Hun, 399, 15 N. Y. Sup. 512. 4 S. v. Maloney, R. M. Charl. 84. The legislature has power to provide 58. v. Buckman, 8 N. H. 203, (29 for the recovery of a certain sum as Am. D. 646;] Rex v. Taylor, Russ & punitive damages for an illegal act, Ry. 373; S. v. Danforth, 3 Conn. 112; although the same illegal act sub- Southworth v. S., 5 Conn. 325. jects the offender to a criminal pros- 6 Gregory v. Com., 2 Dana, 417. ecution. S. v. Schoonover, 135 Ind.

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