*

Neither does the appropriation of the fine or penalty imposed in a given case, whether it be to the state, county, or town, or to a corporation, or individual, furnish any decisive test that a proceeding is criminal or civil. When a statute forbids fraudulent mortgages and the concealment of attachable property, it by no means follows, because half the fine is given to the complainant, that the prosecution is civil, nor would it do so if the whole fine were so appropriated.

The question whether a legal proceeding is to be deemed civil or criminal, or as partaking of the nature of civil and criminal proceedings, is to be determined by the consideration whether the law is designed to suppress and punish a public wrong, an injury affecting the peace and welfare of the community and the general security, or whether it is designed mainly to afford a remedy to an individual for an injury done to his person or property. Upon this question the appropriation of the fine or penalty has a bearing, since, if it is applied to the public use, no idea can be entertained that the proceeding is designed as a remedy for a private loss or injury, though it may sometimes have a different tendency, where the amount is appropriated to the use of a suffering party.

And, in a similar way, the adoption of a course of proceeding usual in criminal cases alone may bear upon the main question before referred to, because, ordinarily, proceedings adapted to the punishment of offences are, to a great degree, unsuitable for the redress of private injuries. The party injured has no exclusive privilege to institute criminal proceedings; they are equally open to others; he has no control over such prosecutions, which are generally managed by the public authorities; the fines and penalties are, for the most part, payable to others, and liable to be remitted by the proper officers without reference to his wishes or his interest.

This present case is one of a prosecution for an offence made penal by a city ordinance, because of its supposed evil consequences to society. It has no relation to any individual wrong, and the remedy prescribed is such as indicates a criminal proceeding. It is prosecuted by a public officer, as part of his official duty, but might be prosecuted by any other person as well. The fine is payable to the city, but not to compensate any wrong to the corporation. The burden of administering justice is here imposed upon counties, cities, and towns, and fines and forfeitures are payable to them, as the representatives of the public, to aid in defraying this part of the expense of civil government. The case then seems to us to lack all the indicia of a civil action, and to be, in fact, as it appears, a criminal prosecution.

The court were in error in requiring the costs of the copies and entry to be paid, but the costs were properly disallowed.

STATE v. KEENAN.

SUPREME COURT OF ERRORS OF CONNECTICUT. 1889.

[Reported 57 Conn. 286.]

CARPENTER, J. This is a criminal prosecution for the violation of an ordinance of the city of New Haven. The City Court convicted the defendant, and he appealed to the Court of Common Pleas, criminal side. In the appellate court the defendant's counsel moved to erase the case from the docket on the ground that the alleged offence was not a crime; and on that motion the case was reserved for the advice of this court.

The ordinance is as follows: 66 no vehicle, or the animals attached thereto, shall stand waiting for employment within ten feet of any cross-walk." Another section prescribes a penalty of not less than one nor more than ten dollars for every violation of the ordinance. The only question is whether such violation is a crime.

If the legislature itself had prohibited the act and prescribed the penalty in precisely the same terms, there can be little doubt that the act would be a misdemeanor and might be prosecuted criminally. It cannot be disputed that the legislature in fact granted the power to enact this by-law, and the power has been exercised. Logically it would seem to follow that the by-law should be of the same character and have the same force within local limits as if enacted by the legislature.

The test whether a proceeding is civil or criminal, is to determine whether its purpose is to redress a private or a public wrong. Is the law made to prevent a private injury or a nuisance?

In Hinman v. Taylor, 2 Conn. 357, which was a prosecution under the bastardy act, it was contended that because the proceeding was in form criminal it must be regarded as a criminal prosecution; but the court took a different view. SWIFT, C. J., held that the proposition that the form of the process decided the character of the action, was repugnant to reason and precedent. "Suppose," he says, "the legislature should authorize a forthwith process on a note of hand; no one will seriously pretend that this would convert an action of assumpsit into a criminal suit. To constitute a criminal suit some punishment must be inflicted in behalf of the state." He evidently regarded the object and nature of the suit as determining the character of the proceeding. Judge HOSMER, in the same case, is still more explicit. He says: "The criterion to ascertain a crime is not the mere form of process, but the nature of the act or omission. If it be a violation of a public law, it is a crime or misdemeanor." We find the same doctrine clearly stated in State v. Stearns, 31 N. Hamp. 106.

Let us apply that testi A criminal form of proceeding is clearly authorized, and the act is an offence against the public and not an injury to an individual. The penalty is not in the nature of compensation to the city for an injury sustained, but is designed as a punishment for a wrong done to the community - a wrong prohibited, because it may result in harm or inconvenience to individuals, who may or may not be inhabitants of the city. Thus tested the nature of the act as well as the form of process is clearly criminal.

Two reasons are urged why a criminal prosecution cannot be maintained and that the motion to dismiss should prevail. First, that the charter expressly provides that an action may be brought for the penalty in the name of the city treasurer, and that consequently that remedy alone must be pursued. But this argument overlooks the object of the by-law, which is to prevent a nuisance, a matter in its nature criminal. It is no uncommon thing for a statute to authorize an action to recover a penalty incurred by doing a forbidden act, even where a public prosecution can be sustained, as is the case in all qui tam actions. Here not only a civil suit but a public prosecution is authorized in the charter. But to avoid injustice it is expressly provided that "no person shall be prosecuted both civilly and criminally for the same breach of a by-law."

In the second place, it is contended that the right of imprisonment to coerce the payment of a penalty is not expressly given; and if not expressly granted, it cannot exist. This argument seems to beg the question by assuming that the sole object of the suit is to collect a penalty for the benefit of the city of New Haven; whereas the real purpose of the by-law, and consequently of the action, is to suppress a public nuisance. For that purpose there can be no serious objection to putting in operation the power and legal machinery of the state. We advise that the motion to dismiss be denied.

In this opinion the other judges concurred.

CHAPTER II.

THE OFFENCE.

SECTION I.

Felonies.

KENNEL v. CHURCH.

CORNISH EYRE. 1201.

[1 Selden Soc. 7.]

OSBERT CHURCH, accused of the death of Roland, son of Reginald of Kennel, on the appeal of the said Reginald, was detained in gaol and defends word by word. And Reginald offers proof by the body of a certain freeman, Arkald, who has his daughter to wife, who is to prove in his stead since he has passed the age of sixty. Osbert Church defends all of it. The knights of the hundred of Penwith say that they suspect him of the said death. The knights of Kerrier say the same. The knights of Penwith say the same. The knights of Pyder say the same. Judgment: let him purge himself by water.

And Reginald is in mercy for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both Reginald and Arkald be in mercy.

Osbert is purged by the water.1

WISPINGTON v. EDLINGTON.

LINCOLNSHIRE EYRE. 1202.

[1 Selden Soc. 10.]

ASTIN of Wispington appeals Simon of Edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye so that he is maimed of that eye; and this he offers to prove, &c. Simon comes and defends all of it word by word. And the coronors and the county testify that hitherto the appeal has been duly sued, at first by [Astin's] wife, and then by [Astin] himself.

1 For cases on the modern law of Homicide see Chap. XIII. ED.

Judgment: let law be made, and let it be in the election of the ap

pellee whether he or Astin shall carry the iron. He has chosen that Astin shall carry it. Astin has waged the law. Simon's pledges William of Laud and his frankpledge and Ralph of Stures. Astin's pledge, Roger of Thorpe, Osgot of Wispington, and William, Joel's brother. Afterwards came [the appellor and appellee] and both put themselves in mercy.

JORDAN DE HORMED v. WALTER HACON.

HERTFORD EYRE. 1198.

[1 Rotuli Curiae Regis, 160.]

JORDAN of Hormed appeals Walter Hacon for that in the peace of the king and wickedly in felony he assaulted him in his house at Strange near Ikenton, and wounded him in the head and in the hand; and he shows the wounds and offers to prove it by his body as the court shall consider.

Walter defends all, word for word, against him as against a champion hired and paid, who twice had started on this course and as often retired without completing it.

Jordan denies that he is a champion, and pursues his suit against him. And a jury of knights testify that on another occasion he had appealed him of the robbery of a sword and cape of which he now made no mention.

They are to have a day at Dunstable.1

REX v. HUGH.

CORNISH EYRE. 1302.

[Year Book 30 & 31 Ed. I, 529.]

H. was presented by the twelve of Y., for that he seized a certain girl, and carried her to his manor in a certain vill, and carnally knew her against her will.

H. was brought to the bar by Brian and Nicholas de N.

THE JUSTICIAR. Brian, we are given to understand that you would have induced the prisoner not to put himself upon the jury which accused him, and you have done ill, but because he is your relative, we

1 For cases on the modern law of Assault see Chap. XIII., Sect. II.- ED.