June, 1829.

#### The State v. William R. Pool.

From Wake.

Where one statute creates an offence, imposes a penalty and gives an action to recover it, and another makes the offence indictable, it was held, HaifnEnsoir, Chief-Justice, dissetuiente, that an indict-, ment for the offence should conclude, “ against the form of the statutes.” Therefore as the act of 1784, sec. 14, (JRev. ch 227) prescribes the duty of overseers of the road, and the act of 1786, sec. 4, ('Itev. ch. 256) makes the omission of that duty indictable, it was held that an indictment against an overseer, concluding “ against the form of the statute,” was defective.

Per HEWDEnsow, Chief-Justice. — -Where it is necessary to have recourse to two statutes to show the criminality of the act charged in the indictment, it should conclude in the plural. But when that act is an infraction of one statute only, and the mode of prosecution and measure of punishment is prescribed by another, it should conclude in the singular.

The Defendant was indicted in the following form :

The Jurors for the State upon their oath present, that TV. JR. I’. late of &c. on &.c. and for a long time as well before as &c. being overseer of that part of the public road leading from &c. to &c. did permit the said public road, of which lie was overseer as aforesaid in &c. to become ruinous, miry, broken and in great decay, for want of due reparation tlu-reo", and the same so to be and remain during, &c. ncg’igently did permit and stdl doth permit, to the great damage and common nuisai.ee of all the citizens of the state and others, the same mail passing and repassing, against the form of the statute in such case made and provided, and against the peace and dignity of the State.

After a verdict for the State, it was moved for the Defendant that, the judgment should be arrested, and the cause assigned was, that by the act of 1784, {Rev. ch. 227) toe duties of an overseer of the road were prescribed, and a penalty, recoverable by warrant, prescribed in case of neglect; and by tiie act of 1786, (Rev. ch. 256,) a neglect of the.se duties was made indictable, yet the indictment in this case concluded “against the form of the statute” and not “ of the statutes,'” in the plural, which it was contended was the proper conclusion.

*203His honor Judge Martin overruled the motion, & judg-inent being rendered Cor the State, the Defendant appealed. The case was argued at June Term, 1828, by Badger, for the Defendant, and by Devereux, for the State, and there being a difference of .opinion in the. Court, the cause was held under advisement until the present term, when the argument of the Counsel was shortly recapitulated* as his honor Judge Toomer was not present at the former hearing,

Hall, Judge.

It appears to me, that the authorities on this subject arc somewhat perplexed, and unsatisfactory. Hawkins says, that where the same offence is prohibited by several independent statutes, there are some authorities, that you must either conclude contra formam statutorum, or contra formam of the particular statutes, naming them ; and that if vou barely conclude contra formam staluti, the indictment will be insufficient, for not showing on which of the statutes it was taken. (2 vol. ch. 25, sec. 117.) But there are strong auihonties for the contrary opinion, which is also most agreeable to precedents. .The same doctrine is laid down in Chitty's Crim. Law. (1 vol. 291.) Bur I do not think it applies to the case now before the Court, because the act of 1786 cannot be taken tobe, independent, of that, of 1784, because if the act of 1784 is kept out of view', there is no offence committed. That act creates the offence: the act of 1786 only gives the remedy.

Hawkins, in the section above referred to, says, that where a later statute ordains that a former statute shall be executed in a new case, not mentioned in the firmer, as the 8 Henry 6, ch. 9 does, that, the 15 Rich. 2, ch. 2, shall be executed in the case of a forcible detainer, which is not mentioned in it; or where a new' statute adds a new penalty to an offence prohibited by a former statute, as the 23 Eli«. does to that of the 20 Ella, for a month’s absence from church, contrary to the tenor of the 1 Elix. *204it seems that it may be argued with great reason, that if the indictment conclude contra for mam statuti, it will be insufficient, because the offence is not punishable by any one statute only. Yet considering that the precedents in these cases generally conclude contra formmn statuti, and the prosecution in truth depends upon the later statute, which seems itself alone sufficient to support if, it may be reasonably argued, and seems agreeable to the later opinions, that such a conclusion may be allowed in these cases. Chitly lays down the same doctrine, in the page above referred to.

As to the. first branch of the proposition, that where a new penalty is added, by a later statute, to an offence prohibited by a former, it is proper to conclude contra formara statutorum. Dinghy v. Moore, (Cro. Eliz. 750) is relied upon. By that case it appears, that it was by the 1 Elia, enjoined as a duty upon all subjects to go to church on Sundays and holidays, on pain of punishment by the censure of the church, and forfeiture of twelve pence for every offence, to be recovered by the wardens of the parish, for the use of the poor, &c. By the 23 Eliz. ch. I, sec. 5, it is enacted, that every person above the age of sixteen, who shall not repair to the church, contrary to the statute of 1 Eli», shall forfeit twenty pence, for every month they shall forbear, to the Queen’s majesty, and shall be bound with security in the sum of ;6200, for their good behaviour. The case of Broughton v. Moore, (Cro. Ja. 142) is an authority in support of the same doctrine. Hale in his 2d vol. at page 173, lays down the same rule, and founds his opinion upon the case of Dingley v. Moore. Dormer's case, (2 Leo. 5)—Rex v. Simmons, (Aleyn 49, 50,) and Owen 135, are also cited for the same purpose. Archbold (Criminal Pleadings, page 28) lays down the law to be that when one statute creates the offence, and another inflicts the penalty, the indictment for the offence must conclude contra formara statutorum, and cites 2 Hale 173, and Broughton *205v. Moore. In addition to these authorities, there is one of modern date, (Lee v. Clark, 2 East 333,) in which Lord Elleuborough says, that if one statute prohibits a thing, and another statute gives a penalty, then upon an information upon a penalty, both statutes ought to be recited, and to conclude contra formam statutornm. It is true that in a subsequent case, (Earl of Clanricarde v. Stokes, 7 East. 516,) he dispenses with the necessity of such conclusion, provided the statutes arc sufficiently referred to in the body' of the information. As that is not done in this indictment, both those cases are authorities, ill at the conclusion should bo contra formam stataiornn i.

The case of Andrews v. The Parish of Lewknor, (Cro. Ja. 187,) does not shake the ground on which these authorities are based. That was an action against the hundred, upon the statute of Winton, (13 Edward 1, ch. 2,) of liue and cry. It was objected, that the declaration should have concluded contra formam statutornm, because it was against the statute of 27 Eliz. ch. 18, as well as against the statute of Winton. The Court held otherwise, because the action was founded upon the statute of Winton, which gave the penalty and remedy ; that of Elia. only regulated the manner of the examination, and limited the time within which (he action should be brought.

In support of the last branch of the proposition laid down by Hawkins and Chilly, that a conclusion contra, formam statuli, is sufficient by more modern authorities, where one statute creates an offence, and another adds a new penalty, the case of Warren v. Sayre, (1 Mod. 191) is cited. In that short case it was decided, that an information upon the 25 Eliz. only reciting the clause in it, which has reference to the 1 Elia, was good. To dispose of this case, it may be asked if the Judges would have so decided, if no reference to the 1 Eliz. had been made in the body of the information, which last statute made it a duty to goto church on Sundays and holidays, the omission of which was not an offence at common !aw\ *206This case is not reroncileahle with another case cited for the same purpose. In Parker v. Webb, (3 Lev. 61) it is held, that an information will lie upon the 23 Eliz. alone; because that statute only gives the penalty of twenty pence per mouth, &c. Now in this case, it does not appear that there was any reference in the body of the indictment to the 1 Eliz. as there was, and which was held sufficient, in the case of Warren v. Sayre.

For my own part, I feel bound to subscribe to those opinions, which consider the 23 Eliz. dependant upon the 1 Eliz. Keep the latter statute out of view, and I am at a loss to perceive how a recovery of the penalty can be had on the former. The 23 Eliz. does not make it a duty to go to church at any particular time, but gives a penalty for not going to church, as the 1 Elia. points out. How is this to be ascertained, without having recourse to it ?

To apply these principles to the case now before the Court, by the 14x1» section of the act of 1784, (Revi-sal ch. 227) it is declared xhat the, overseers of the road shall keep the same in repair, and in default thereof, shall forfeit forty shillings, over and above such damages as shall be sustained, to be recovered by a warrant before any Justice of the Peace, by any person taking out the same, and to be applied to his own use. By the act of 17‘.>6, (Rev. ch. 256,) amendatory of the act of 1784, it is declared that all offences committed or done against the purview of the act of 1784, shall be hereafter prosecuted by indictment, in any Court having cognizance thereof, and all forfeitures shall be recovered by action of debt. By this act, the remedy by indictment is given, to which upon conviction, an additional punishment by fine is annexed. The result in my mind is, that the act of 1784 creates the offence, the act of 1786 gives an additional remedy and punishment, consequently that the indictment should conclude in the plural, contra for-mam stalutorum.

*207This may appear to be a trivial objection. Be it so ; but if it has been sustained as well founded, for eentu-Hes, by able and learned .1 edges, it would he presumption in me, as well as a disregard of my duty, to.overrule it.

Toomrh, Judge, concurred.

Henderson, Chief-Justice,

dissenfienta. — The act of If34, (Rev. ch. 227) prescribes the duties of overseers of roads, and it is di dared in the 14th section of the act, that ail overseers, who shall fail, or neglect to do liieir duty, as by that act directed, shall forfeit forty shillings for every offence to he recovered by warrant. By the act of 1786, sec. 4-,'(Ilev. ch. 256) it is declared t'.iat all offences, or acts done against the purview of the. act of 1784, shall thereafter be prosecuted by indictment.

The Defendant is indicted for doing acts prohibited by the act of 1784, and omitting to perform duties enjoined by it, and the indictment concludes against the form of the statute, in the singular, and it is objected that as it is founded on both statutes, it should conclude against them both in the plural.

If we have recourse to authorities, I scarcely know of a question more perplexed. The books arc confused, and I think irreconcileabie. It is said by many, that where recourse must be had to two or more statutes, to punish as by law directed, the indictment should conclude against “the form of the statutes.” I think that is not the rule, for we know that win re cle< gy is ousted by statute, cither from a common law, or a statute offence, the statute ousting clerg) is never referred to ; neither are on r modern statutes which cjhangethe proceedings and inflict punishment upon the allowance of clergy ; this is a very strong case/ for bj those statutes, the punishment is changed. 1 am inclined to believe that this is the rule j that where it is necessary to have, recourse to two or more statutes, to show that the acts imputed as crimes, arc in fact so, that is, acts forbidden or duties *208enjoined, (I am not enquiring now whether they should not be acts or duties of a public nature,) there both or all the acts must be referred to. It may then truly be said, that the Defendant did those acts, contrary to the prohibitions or injunctions of the statutes. But it cannot be said, that the Defendant did an act contrary to the prohibitions of a statute, when the statute did not prohibit if, in fact was silent in regard to it, and only prescribed the mode of prosecution, and the punishment upon conviction. It maybe asked, which statute has the Defendant violated. The answer is, as I think, that statute which prohibited the acts which he lias done, or enjoined the duties the performance of which lie has neglected. The statute prohibiting or enjoining the acts is the major prohibition ; the acts imputed or the omission alleged, the minor, and the guilt or innocence of the accused, as his acts may, or may not fall within the statute, the conclusion. The Defendant cannot be said to act contrary to a statute, which prescribes nothing to be done, hut only fixes the mode of proceeding against, and the measure of punishment to those who have violated another.

it would he more rational to consider that the 4th section of the act of 1786 re-enacted that of 1784, as if the latter had been set out at large, and thereby that the act of 1786 was violated, and not the act of 1784. Isay this construction would be more reasonable, than that both statutes must be resorted to, in order to show that the acts charged are criminal.

It is with great deference, and much reluctance, that I differ from my brothers ; but my opinion is, that the indictment is sufficient.

Per Curiam. — Let the judgment below be reversed, and the judgment arrested.