In re Dougherty

27 Vt. 325 | Vt. | 1855

By the court:

Redfield, Ch. J.

Many of the questions arising in this ease have already been determined in the case of the State v. Conlin. By the rule laid down there, these minor offences, affecting merely the police of the state, do not come within the tenth article of the bill of rights, and no complaint is in fact necessary. A parol accusation is enough, if the legislature so provides, and the conviction, being set forth in the record, is all that is required, to sustain the commitment. All questions raised in regard to the manner of this prosecution, are there disposed of. The questions peculiar to this case are, that the wife is convicted of an offence, which it is charged by the testimony of the person originally making the complaint, and by the warrant issued by the justice, she committed jointly with her husband. It must be borne in mind, that the question is not now raised, as if upon the trial of the «ase, or even upon error, but we are required to treat the conviction, as virtually void, in order to discharge the respondent. This we are not prepared to do. If one should be convicted of larceny in the county court, when charged with the offence jointly with the husband of the accused, it might be error, and certainly would be ground of new trial, unless under peculiar circumstances, but clearly no sufficient ground of discharging the respondent on habeas corpus, as we have often held.

The objection that it appears that there was no legal warrant for imposing a penalty of $20, inasmuch as the record does not set forth a former conviction of a similar offence, but of the very same offence, is too refined to be sustained. If this were to receive this rigid and literal construction, it would show the respondent should have been acquitted, on the ground of the former conviction for the same offence. But we think such a construction would be absurd, and would justly expose any court adopting it, to severe and just criticism. We should regret to make any decision upon such narrow ground, even in a matter affecting life, much less in one of such insignificance. This record is in the very words of the statute, “ But upon proof of one or more former “convictions of the same offence, the respondent shall be sen- “ tenced,” &c. And we should not certainly feel justified in giving this statute any such literal construction, and we do not feel called upon to give any such construction to the record.

These are all the objections to the proceedings in this case, not virtually disposed of in the former case.

The respondent is remanded to her former custody and the petition dismissed without costs.