| Vt. | Jan 15, 1875
The opinion of the court was delivered by
It is seldom that this court has been called to sit in judgment on the first point of exception taken in this case. The judicial and professional understanding on the subject is significantly evinced by this, in view of the fact that the omission of the names of the witnesses, entirely or partially, has been of frequent occurrence from the earliest days of the statutory provision in this respect. In the thirty-five years of my connection with the profession, this is the second instance that I now recollect of the point having been made outside of a justice’s court. In State v. Norton, 45 Vt. 258" court="Vt." date_filed="1873-01-15" href="https://app.midpage.ai/document/state-v-norton-6579631?utm_source=webapp" opinion_id="6579631">45 Vt. 258, it seems frwin the opinion by Royce, J., that the point was made in argument, under a demurrer to a complaint. It was held not to be matter to be readied by demurrer, without further discussion. In Downer v. Baxter, 30 Vt., Judge Bennett, incidentally, and by way of analogy for illustration, says, the statute requiring the memorandum of names of witnesses to the presentment by town grand jurors, has always been held to be directory, and that an omission to annex the names of witnesses to the complaint, was no cause for quashing the proceedings.
III. The gist of the offence is the breach of the peace by tumultuous and offensive carriage, by a certain character of acts. When, by any of those acts, or by all of them, a person has broken the peace, he has committed the offence. When it is affirmatively averred that he did break the peace at a place and time named, by doing specified acts of the kind named,- towards or upon a certain named person, the rule of pleading on the subject is fully answered. "By threatening, * * * beating, arid striking Joseph Langlois,” is showing the means by which the offence was committed. It is of the same import as showing the instrument in an indictment for homicide, with which the killing was done; for instance, “ with a gun charged with powder and a leaden bulletor, “ with a club then and there held in his right hand.” The means by which the criminal act was done being thus shown in the indictment, the rules of 'evidence then supervene, and if what is set forth in the allegation is maintained by the evidence, the crime charged is proved to have been committed by the respondent. It would not have varied the rule and measure of evidence on either side, if it had been said by absolute and independent averment, that the respondent did then and there beat and strike the said Joseph Langlois. It would have been but showing the means by which he committed the crime of breaking the peace.
Exceptions overruled, and judgment affirmed.
Note. — The form devised by Judge Wilson in State v. Matthews, 42 Vt., is undoubtedly good and sufficient; but it is not to be regarded as being the onlv good and sufficient mode.