143 A. 284 | Vt. | 1928
The respondents were convicted in the Barre city court of a violation of the provision of Act No. 215 of the *303 Laws of 1921, which reads as follows: "A person shall not between twelve o'clock Saturday night and twelve o'clock the following Sunday night, exercise any secular business or employment, except works of necessity or charity."
The undisputed evidence upon which the conviction was had showed that the Barre Candy Kitchen, so-called, of which respondent Corologos was proprietor and respondent Lamperti an employee, was open to the public for business on the afternoon and evening of Sunday, April 10, 1927, and that during that time each respondent therein sold to divers persons ice cream, sundaes, milk shake, hot chocolate, and lemon sour.
The chief question raised by the exceptions is whether the business or employment in which the evidence tends to show respondents were engaged was one of "necessity" within the meaning of the statute. Although all of the statutes of this State enjoining the performance of certain secular business and employment on the Sabbath, the first of which was passed in 1787 (See R. 1787, p. 134), have expressly recognized as permissible work of necessity or charity (necessity or mercy was the language of the original act), this is the first time this Court has been called upon in a prosecution for a violation of those statutes to consider the meaning of the word "necessity" as therein used. If this word is to be given its scientific or physical meaning, that is, if the business or employment meant by the statute must be essential, indispensable, or impossible to forego, the meaning of the statute is plain, and its application is attended with no difficulty. That it should not be given this limited meaning we entertain no doubt. We, in effect, held otherwise in McClary v.Lowell,
Respondents' 1st, 5th, and 9th requests to charge were properly denied since they included, or were broad enough *306
to do so, the sale of commodities not in question, and, therefore, called for the determination of matters not here involved. Nos. 2, 3 and 4 should have been complied with in substance, since they embody the views herein expressed concerning the meaning of the word necessity. No. 6 is simply a statement of an abstract principle of law, not applicable to the case made by the evidence, and failure to comply therewith was not error. Vermont Box Co. v. Hanks,
The charge of the court, taken as a whole, was such that the jury might well have understood that nothing short of dire necessity for the things purchased would excuse their sale by the respondents. This was error. "Dire" according to Webster's New International Dict. means "dreadful, dismal. horrible, terrible, lamentable." A need or demand of such extreme nature is not required by the statute to excuse the exercise of a business or employment on the Sabbath. A reasonable necessity is all that need be shown. The State contends that the respondents were not harmed by this erroneous charge since some of its witnesses testified on cross-examination that they did not need the things they purchased, but got them simply because they wanted them. This evidence, if competent (See Bovee v. Danville,
The respondents saved nine exceptions to the exclusion of evidence, all of which are now relied upon. Regarding these exceptions respondents' brief, in effect, does no more than to restate what was said in taking them, which we have repeatedly held to be inadequate briefing. Temple et ux. v. Atwood,
The respondents offered to show that two other parties kept their respective places open on the Sunday in question, and therein sold ice cream to various persons. The evidence was excluded and the respondents excepted. It was, and is, claimed that this evidence tended to show discrimination against the respondents. If so, it was a discrimination in the administration of the law and not in the law itself, and manifestly had no bearing on the question of respondents' guilt or innocence. One offender cannot excuse his conduct by showing that someone else equally guilty has not been prosecuted.
Judgment reversed, sentence set aside, and cause remanded. *308