The opinion
Learned, P. J.,
(dissenting.) This is an appeal from a judgment of the county court reversing a judgment recovered by plaintiffs before a justice of the peace for $100 and costs. The action was brought to recover penalties amounting to $200 for four alleged violations of section 14, c. 628, Laws 1857, (excise law.) The alleged violations were the selling of hard cider without a license. The action is penal, and the defendant is entitled to have the matter tried in a due and legal manner. The evidence given, against defendant’s objection, by the witness Tanner, that his brother-in-law and Ehnendorf fought together when they got back in the woods, was plainly improper. It was not shown that they fought because they were intoxicated, and it was no evidence of the intoxicating quality of the eider. The evidence that other complaints had been made about defendant was improper. The jury brought in a written verdict: “We finde the defende $100 dollars.” Plaintiffs’ counsel, requested that the jury retire and make their verdict more explicit. They attempted to state their verdict, and said: “We find the defendant of two offenses, and supposed when we expressed the amount the court would know we meant two offenses.” Defendant’s counsel requested that the written verdict be entered, and the jury discharged. The court directed the jury to retire and correct their verdict. They did so, and brought in: “We finde the defende of two offenses, fifty dollars each.” I think that this was not such a verdict as justified the rendition of a judgment of $100 thereon in favor of the *199 plaintiff. I can, of course, conjecture what the jury meant; and I understand the power of courts to correct verdicts in respect to form. But I think this verdict too defective to stand. It seems as if the jury might have thought that they could “fine” the defendant. But, whatever were their thoughts, they did not succeed in expressing them in a manner to justify a judgment in favor of plaintiffs. The judgment of the county court should be affirmed, with costs.