The appeal from the judgment of the Criminal Court of Common Pleas striking the case from its docket for lack of jurisdiction raises two questions. First, does the statute under *Page 198 which the accused was prosecuted make the neglect or refusal to pay a personal tax assessed against him a crime? Second, was the action prosecuted in the name of the State as a criminal action?
I agree with the majority opinion that the statute in question does not make the failure to pay the personal tax assessed against the accused a crime.
I disagree with that part of the opinion holding that the proceeding of the Borough Court was a civil one. The complaint was brought in the name of the State to the Borough Court, which had criminal jurisdiction, by the prosecuting attorney who "on his oath of office complaint and information makes." The accused is charged, as in all criminal cases, that "with force and arms" he did neglect and refuse to pay his personal tax, and the information concludes, as do all criminal informations, "against the peace of the State, of evil example, and contrary to the statute in such case made and provided." The accused was arrested on criminal process issued, brought before the court, put to plea, and pleaded not guilty. Thereupon the court, after trial had, rendered judgment finding the accused guilty, and ordered that the "accused . . . stand committed to the common jail in the town and county of New Haven until said tax . . . shall be paid." From this judgment the accused appealed to the next criminal term of the Court of Common Pleas in New Haven County.
Here we have an information, criminal in form, process issued thereunder criminal in form, proceedings had in the Borough Court as in all criminal causes, a sentence and judgment as in a criminal cause, and an appeal to a criminal court.
Nothing further, in my judgment, was needed to characterize the action as a criminal one.
As the statute under which the accused was convicted *Page 199 did not create a crime, the judgment of the Borough Court sentencing the accused for a crime was void, and on appeal from a void judgment the appellate court should strike the appeal from its docket and vacate the judgment of the lower court. Clark v.Manufacturers Nat. Bank, 74 Conn. 263, 264,50 A. 727; note to 33 L.R.A. (N.S.) 733.
The majority opinion holds that the judgment of the Borough Court, though criminal in form, was prosecuted as and for a civil action, and therefore the Criminal Court of Common Pleas properly erased the appeal from its docket.
I agree with the court that the judgment erasing the appeal is good.
I disagree with the conclusion that the case before the Borough Court was a civil one, and hence that the judgment rendered was a civil one, and am of the opinion that the judgment of this court should, in addition, vacate the judgment of the Borough Court.