27 Vt. 553 | Vt. | 1854
The opinion of the court was delivered by
It is argued that the complaint in this case is bad, because it is not stated to have been made upon the office oath of the grand juror; hut this objection cannot avail the party. Horace Wheeler, the grand juror, comes before the justice as grand juror, and, as such, he makes his complaint against the defendant, and signs the complaint in his official capacity. We should presume that he had taken the oath prescribed for -grand jurors, and, consequently the official act of his, in making the complaint, must of necessity have been under the sanction of his oath of office, and this would have more clearly appeared if it had been so stated upon the face of the complaint. A town grand juror is a standing officer of the government, as much so as the state’s attorney, and both act under their usual office oath, and none other is required of them. Consequently, all official acts are done under oath. If an indictment is found by a special grand jury, who are to be sworn on every occasion of their being summoned, it is quite possible, a different rule would obtain.
In the case of State v. Sickle et al., Bray. 182, this same objection was taken to an information filed by a states attorney, and was overruled, and we think correctly.
It is claimed that the complaint is had in substance, because the court, upon a general conviction, could not tell what fine to assess. But, suppose it be conceded that this complaint would be had upon common law principles, it does not follow hut what it is made good by the statute. It is quite competent for the legislature to prescribe what shall he the form of an indictment in a given case, provided in so doing they do not contravene any constitutional provision. The legislature have prescribed the form of the indictment as follows, to wit., “that the respondent became a dealer in intoxicating “ liquors without having license therefor, contrary to the form of the
It is objected that the legislature in adopting this form have violated the 10th section of the constitution of this state, which provides that in all prosecutions, “ the accused shall have the right to demand the cause and nature of his accusation.” We think this complaint fully apprises the accused of the cause and nature of the accusation alleged against him, though it may not of the extent of the penalty for which the government may go; nor do we think that to be necessaa-y. The penalty results as a consequence of the offence, and is not a part or parcel of the offence itself.
It is said that the complaint is bad because the court cannot tell what penalty to inflict upon conviction.
To this we answer, the penalty, upon a general conviction, must be for a single sale and for a quantity not exceeding twenty gallons; that is, it must be for the lesser offence. If a larger penalty is asked, the government must see to it, that a special verdict is returned, showing the extent of the conviction. This would preserve the rights of the accused, and enforce the law according to its spirit and provisions. It would be in analogy to prosecutions for larceny, where the jury find the value of tire property stolen under seven dollars, though charged to be more in the indictment. Though we may not fully approve of the form of the complaint which the legislature have prescribed, yet we are not for that cause to repudiate the law, provided its provisions can be carried out, and the substantial rights of all persons preserved.
The replication to the plea in bar is a good answer to the prima facie effect of the matter pleaded in bar. It puts in issue the want of identity in the two offences, and by the demurrer, they are admitted not to be the same.
The judgment of this court is, that the defendant take nothing by his exceptions.
