38 Vt. 437 | Vt. | 1866
The opinion of the court was delivered by
The section of the statute upon which the indictment is founded is as follows: “ It any person without due authority from this state or the United States shall hereafter enlist, recruit or employ, or attempt to enlist, recruit or employ any person in this state for military service without this state, he shall be guilty of an offence against the laws of this state, and shall be punished by a fine not less than fifty dollars nor more than one hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than one year.” G. S., p. 695, § 29. The respondent has specially demurred to the indictment because it does not allege with certainty
1. The general rule requiring certainty of averment of time and place may never be disregarded in alleging the acts complained of. It does not apply to those descriptive or definitive portions of the indictment, whose office it is to so qualify or limit the object acted upon as to show it to be the proper subject of complaint, unless time or place is an element necessary to constitute it a proper subject, and the existence of this element would be susceptible of question if not averred. Upon this principle much of the apparent conflict of authorities upon this subject is reconcilable. See Cliitty Crim. Law, pp. 220-1; Wharton Am. Prec., p. 2; 2 Ben. & Heard’s Dig., p. 12, note; Comm’h v. Sullivan, 6 Gray, 477; Same v. Barker, 12 Cush. 186.
The qualifying expression “ being the freehold of J. B.,” in the case from Croke is upon this principle distinguishable from the qualifying expression “ in this state” in the case before us, so far as the importance of connecting them in time with the main charge is concerned. The entry upon the land might have been at the time and the place alleged, and yet the land not have been at the same time the freehold of J. B., but the enlistment could not have been as alleged at Fairfax, in the county of Franklin, in the state of Vermont,
2. The indictment charges the offence in the words by which the statute creates and describes it. The general rule recognized both in England and this country, and in a late Vermont, case, State v. Jones, 33 Vt. 443, requires no more. This rule does not apply to complaints upon those statutes which describe an offence by its common law name. It does apply to indictments upon a statute which is of itself complete, and which, by creating, defines the offence. In indictments upon such statutes the rule does not obviate the necessity of the substantive averment of time and place, but does often dispense with the need of that repetition of reference to it, which, it is usual to connect with the allegation or charge of each constitutive element of a common law offence.
3. We think the words “ in this state” after the word “person” might be omitted not only in the indictment, but also in the statute, without in the least altering the force of either. They are surplusagedn the statute, if it is true that penal laws are presumed to have no extra territorial application where they do not expressly provide for it, a principle \vhich is, we conceive, well settled. 23 N. Y. Rep. 465; 27 Barb. 248, and cases cited. If the words “in this state” are construed as relating to the verbs “recruit, enlist, and employ,” they simply limit the prohibition of the statute to this state by express words, which is the limit without them. If they are construed as relating to the word “ person,” still, the enlistment must be in this state to constitute a violation of the penal law of this state, and if the enlistment is here the “person” would necessarily be here when enlisted. These words therefore add no more to the legal force of the statute, than do the subsequent words “ he shall be guilty of an offence agaiüst the laws of this state,” a fact that is quite naturally implied in the circumstance that he becomes liable to a year’s imprisonment in the county jail.
The respondent had leave to withdraw his demurrer, a repleader was granted, and the case was remanded to the county court for trial on motion of the respondent’s counsel.