State v. Johnson , 65 Me. 362 ( 1876 )

Walton, J.

The defendant is indicted for being a common innholder without a license.

I. It is objected that the indictment cannot be maintained because it does not show to whom the penalty is to go. It is only when the penalty goes to the prosecutor, or to some other person or persons, of whose existence and identity the court cannot take judicial notice, that such an averment is necessary. When, as in this case, the penalty goes to the town in which the offense is committed, and the appropriation is made by a public statute of which the court can take judicial notice, and the indictment gives the name of the town in which the offense was committed, no other or further averment is necessary. State v. Smith, 64 Maine, 423. State v. Cottle, 15 Maine, 473. State v. G. T. R. R. Co., 60 Maine, 145. Com. v. Messenger, 4 Mass., 462.

II. It is further objected that the indictment cannot be maintained because two civil suits are pending against the defendant to recover the same penalty. We think the penalty is not the same. The first suit was for being a common innholder without a license from May 19, to June 1,1874. The second was for being such inn-holder from June 1, to July 1, 1874. The indictment is for being such innholder from September 1, 1874, to the time of finding the same, a period of time not covered by either of the former suits. The court cannot yield to the argument that because a license to keep an inn will continue in force to the end of the year, therefore but one penalty can be incurred for keeping an inn without a license within that time. The court is of opinion that if the defendant should eventually be punished for violating the law in May or June, such punishment would not be a bar to his being again punished for another violation of it in September; that the first punishment would not have the effect of a license to continue in wrong doing in the future, and to the end of the year.

Indictment adjudged good.

Appleton, C. J., Dickerson, Baerows, Daneoeth and Libbey, JJ., concurred.