Wynehamer v People.pdf - The University of Texas at Austin

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ALBANY, MAECH, 1856. 485Wynehamer against The People.that the right has never been taken away in any case, buthas always been used, and consequently, that the legislaturehad no right to take it away in these cases. It will beseen, however, that although by the Revised Statutes thejurisdiction of the special sessions to try and punish ismade subject to certain conditions, the right of trial byjury is by no means there secured in all cases. If a personis .unable to furnish bail to appear at another court, it isthe right and duty of that court to try him, notwithstandinghis desire or demand to be tried elsewhere. This is asmuch a violation of his right, if it is one secured by theconstitution, as though the statute had in terms forbiddenthe magistrate to take bail.But it is a question of power in the legislature to conferthe jurisdiction upon these courts, and that question cannever be made to depend upon the consent or request ofthe person accused, to be tried, or upon his ability to fur-Dish bail to appear at another court. It is a privilegegiven by the legislature in such cases, which might havebeen withheld. The power of the legislature to determinebefore what courts, with or without a jury, offences of thischaracter .shall be tried, is, I think, undoubted. This viewanswers the other objection, that a trial and convictionbefore such a court is not by due process of law.The case shows that the offence was committed in thepresence of a policeman, who thereupon seized the bottleof champagne so sold, and the bottle of brandy and its contentsfrom which the quantity sold to be drank had beentaken. The right, therefore, to search for liquors, supposedor suspected to be kept for unlawful purposes, does notarise in the case. The court before which the defendantwas tried adjudged that the liquor was unlawfully kept,and that it was forfeited, and issued a warrant for itsdestruction.It is contended that no person can be deprived of hiaproperty in this manner. If the trial and conviction are3 KERN.—31
486 CASES IN THE COURT OF APPEALS.Wynehamer against The People.by due course of law, it is difficult to see upon whatfoundation this objection can rest. The power of thelegislature to authorize or impose, by way of penalty,the forfeiture, upon judicial. sentence, of property keptor sought to be used contrary to law, cannot at thisday be seriously questioned. It is the lowest grade andform of punishment for offences against the law, andhas been too long and steadily exercised, without question,to be now involved in any doubt. Instances of theexercise of this power must be too familiar to every lawyerto need citation. *The act of seizure by the officer was clearly lawful.The unlawful act was open and flagrant in the officer's presence,and it would have been a gross and inexcusablebreach of duty on his part had he overlooked it. The12th section authorizes the seizure by an officer, undersuch circumstances, without warrant, to be taken beforea magistrate, as was done in this case.The conviction and sentence were, therefore, in my judgment,in all respects lawful and proper, and the judgmentof the supreme court should be reversed.WRIGHT, J., also delivered a written opinion in favor ofaffirming the judgment in the case of Wynehamer. Heconcurred in the dissenting opinions delivered by T. A.JOHNSON, J.On deciding these cases, the court passed upon andaffirmed the following propositions :1. That the prohibitory act, in its operation uponproperty in intoxicating liquors existing in the hands of anyperson within this state when the act took effect, is a violationof the provision in the constitution of this state whichdeclares that no person shall be " deprived of life, libertyor property, without due process of law." That the variousprovisions, prohibitions and penalties contained in the
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