The State v. Arlin, 27 N.H. 116

"Woods, J. The prosecution in this case was instituted before the police justice, under the 14th

section of

chapter 215 of the Revised Statutes, (ch. 229 § 15 Comp. Stat.) The offence described in the complaint is stealing property of a description mentioned or referred to in the statute, of the value of more than ten dollars. The police justice, in pursuance of the powers conferred by ch. 222 § 3 Rev. Stat. (ch. 237 § 3 Comp. Stat.) caused the party accused to be bound over for trial at the court of common pleas, at the' term next ensuing.

An indictment was then and there found, and the party was in due course put upon her trial, and found guilty of stealing the chattels described, but the jury that tried the issue also found that they were of the value of a less sum than ten dollars.

Now it is a well established principle of law that upon the trial of an indictment for larceny, the jury may, upon evidence, lawfully find the value of the things stolen to be less than the sum charged in the indictment, although the character of the offence and the kind and degree of punishment, depending upon that value, be wholly changed by such finding; and the court may thereupon enter up judgment of conviction of the offence found by the verdict, and proceed to sentence accordingly. 1 Hawk. P. C. 231, 400, 460.

The court of common pleas may therefore well proceed in the present case, and render judgment on the verdict, unless there be something in the objections urged by the defendant to their jurisdiction of the cause, which should restrain them, and give the matter a different direction. The Revised Statutes, ch. 172 § 4, gives the court of common pleas general jurisdiction of all offences cognizable by the courts of the State, with certain exceptions, and among the excepted cases are those of which justices of the peace have jurisdiction. By the statute of 1847, ch. 502, [Comp.

Stat. ch. 229 §§ 26 and 27,] the penalties applicable to a certain class of larcenies therein described, are limited, where the property stolen is of less value than ten dollars ; and, in the words of the statute, “ Every justice of the peace is authorized to hear and determine prosecutions arising in his county, under this act, and to issue a warrant to carry his judgment into effect.” Upon a strict reading of the statute of 1847, the present prosecution, not arising under it, but under the Revised Statutes, ch. 215 § 14, is not within its provisions, nor within the jurisdiction of the justice of the peace or of the police justice, whose powers in this particular are the same.

He, of course, could have taken no other course than to bind the party over to the court of common pleas, whose jurisdiction and powers in regard to prosecutions not described in the statute of 1847, are unaffected by it. If, however, we assume that the statute of 1847 is in amendment of the

chapter of the Revised Statutes which has been referred to, and being taken in connection with it, requires to be construed as intending to. separate from the mass of offences falling within the general jurisdiction of the court of common pleas, and to assign to that of the inferior magistrate, the class of petty offences described in the later statute, a different question arises. With regard to most chattels liable to become the subjects of larceny, it may not be a difficult thing to determine whether their value be over or under that of ten dollars.

But with respect to very many, the difficulty may be great, and the judgments of different tribunals may well disagree in endeavoring to fix their value. If the inquiry as to the value of the stolen property becomes necessary or proper for the purpose of ascertaining the nature of the offence, and the kind and degree of punishment to be awarded, it is plain that such inquiry must be made and conducted by the tribunal legally charged with the trial of the issue of guilty or not guilty, which is, in all cases in which the accused 'fitly demands it, a jury of the country. Rev. Stat. ch. 222 § 2.

But a question of jurisdiction is by no means of that high and vital character, that the fact, which ascertains and fixes it, may not well be inquired into and settled by other means, if such means are either expressly indicated by the statutes, or may be fairly inferred from their general purposes and aim. Such a question is the one which is presented in this case.

It is a mere question, not whether the facts described and proved, constituted an offence within the statute, for which the accused was justly amenable to the penalties clearly pointed out by the statute, but whether the court of common pleas had jurisdiction of the case at the time the verdict was rendered, so as to proceed to sentence, and the rendition of that verdict did not oust the jurisdiction of the court, by showing the offence to be one of which it could not take cognizance.

Proceeding upon the assumption that it was the intention of the statutes to give exclusive jurisdiction of all complaints and prosecutions for larceny to the justices of the peace, whenever the thing stolen was of the value of ten dollars and under, it was the duty of the magistrate in this case to inquire, and therefore we are bound to presume that he did inquire, when the accused was before him, as to the value of the chattels stolen. If they were above the value •of ten dollars, it was his clear duty to bind over the respondent for a trial in the court of common pleas.

If they were of a less value, it was equally clear that the offence was within his own jurisdiction, and it was his duty to try it. Upon this inquiry, to which the respondent was a party, he found that the chattels were above the value of ten dollars, and that the offence was not within his jurisdiction. Now this proceeding was a judicial one. The judgment of the magistrate was upon a matter coming directly before him, and devolved upon him by the clear and express requirements of the law.

The law makes no provision for revising that judgment, and upon its being found erroneous, for remanding the cause, which by force of the adjudication has gone to another court. The court of common pleas will not entertain a preliminary inquiry as to the correctness of the magistrate’s judicial conclusions for the purpose of settling again the question of jurisdiction.

In short, the inquest of the magistrate in regard to the value of the property, is one which the law requires him to make for the express purpose of settling this question of jurisdiction ; the judgment by which the jurisdiction is fixed, is one which the law directs him to make for the express purpose of settling the jurisdiction ; the defendant was a party to it, and is es-topped by it, and cannot now, or at any other time, call it in question.

Independently of these proceedings of the magistrate, the finding of the bill by the grand jury would seem to have the effect of determining the jurisdiction of the court. The statutes must be construed with reference to the state of the law at the time of their passage; and unless they contain something, clearly indicating an intention of the legislature to change the law, or unless a change in the law be necessary in order to give effect to the clear and obvious provisions of the statute, such change shall not be wrought. 1 Kent Com. 464; Dwarrison Stat. 695.

Now, as the law stood at the time of the enactment of the statute of 1847, the jury, upon the trial of an indictment for stealing chattels of any alleged value, might find the respondent guilty of stealing the chattels, and at the same time find their value to be less than that charged in the indictment, and the court might thereupon proceed to render judgment of conviction of the lesser offence, and award sentence accordingly. We look in vain for any evidence, in the words of the statute or in its aim and policy, that the legislature intended to change that highly salutary principle of law.

It may well remain in perfect consistency with the provisions of the statute. The judgment of the magistrate, or the presentment of the grand jury, brings the ease before the common pleas, and gives them jurisdiction. It thereupon becomes the duty of that court, to proceed and try it according to the principles and forms of law, and to render a judgment upon any legal verdict which may be returned.

It is entirely unnecessary to suppose that the legislature intended that the jurisdiction having once attached by force of the preliminary proceedings, involving an adjudication upon the value of the thing stolen, made for the express purpose of ascertaining the jurisdiction, should be defeated by the subsequent proceedings, and by a verdict of guilty of the offence charged, and we cannot suppose an intention so directly subversive of the plain objects of the law and the ends of justice.

In the present case, the adjudication of the magistrate, and the indictment found by the grand jury, concur in bringing the offence within the jurisdiction of the court of common pleas. That court have no choice but to try the case and render judgment, as by the rules of law they may well do. The statute of 1847, neither directly nor by necessary implication, changed the law as to the trial of offences like the one described in the indictment, nor did it intend to introduce into legal proceedings such an anomaly as that for which the defendant contends. Judgment on the verdict.