66 Vt. 134 | Vt. | 1893
I. The motion to quash was properly denied. Whether strictly addressed to the discretion of the trial court and not revisable in this court, or otherwise, the ground of the motion was that the state’s attorney had no authority to proceed by information. That ground is not insisted upon now. While held to be addressed to
III. But the respondent has filed in this court an elaborate motion in arrest of judgment. While such motions are usually allowed to be filed at any time before final judgment,, as they present the question whether, upon the record, legal-judgment and sentence can be passed, yet, under our system-of passing criminal causes from the trial court to this court, it is apparent that it was contemplated that this court should-sit only as a court of error in such cases. R. L., 1699, the-only statute on the subject, reads :
“ Questions of law decided by the county court, arising upon demurrer or trial by jury, or upon motion in arrest, in prosecution by indictment, or information for a crime or misdemeanor, shall, after verdict of guilty is returned, upon motion of the respondent, be allowed and placed upon the*143 record, and the same shall thereupon pass to the supreme court for final decision.”
Then R. L., 1700, is :
“If, upon the inspection of the record in a cause where judgment, sentence and execution has been respited and stayed, the supreme court is of the opinion that judgment ought to be rendered upon the verdict, it shall render judgment and sentence thereon, and cause execution thereof to be done.”
From these provisions of the statute we think that a motion in arrest of judgment and sentence cannot properly be filed in this court; that such motions should be filed in and be passed upon by the trial court, and come to this court as matter of error. We might properly dispose of this motion on this ground. But the character of the ^motion is so far reaching that this court would, on proper application, remand the cause to the trial court to allow the respondent to file his motion and have it passed upon there. Such being the case, and inasmuch as the questions arising on the motion have been fully argued and considered, we have concluded to pass upon the sufficiency of the motion, as though it had come regularly before this court.
Such motions are somewhat limited in their operation. They do not always reach all defects which would be reached by a general demurrer. They are confined to the record. A general demurrer reaches every material defect in substance. After verdict, every reasonable intendment is made in support of the verdict, if there is nothing on the record to prevent it. 1 Chit. Pl. 673, note 1. It is there said:
“ The general principle upon which it depends appears to be that where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge*144 would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.”
That is :
“The court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleading was proved at the trial, and such an intendment must arise, not merely from the verdict, but from the united effect of the verdict and the issue upon which such verdict was given.”
But where no ground of complaint or action is set out, the complaint, indictment, information or declaration will not be aided by verdict. This subject has been frequently before this court, and been fully elaborated, elucidated and approved. Harding v. Cragie, 8 Vt. 509; Morey v. Homan, 10 Vt. 564; Manwell v. Manwell, 14 Vt. 14; Needham v. McAuley, 13 Vt. 65; Closson v. Staples, 42 Vt. 226; and recently State v. Freeman, 63 Vt. 496; Noyes, French & Fickett v. Parker, 64 Vt. 379.
Keeping these limitations of the scope of the motion in arrest in mind, we will consider the elaborate objections and contentions of the respondent’s counsel. ' We quite agree with his contention, that with respect to substantial allegations to be contained in the pleadings, this class of crimes is no exception to those required in charging the highest crimes. As said by this court in State v. Davis, 52 Vt. 376; “ This class of cases is no exception to the generality of criminal cases,” and, in State v. Haley, 52 Vt. 476: “This class of statutory crime stands for the same consideration and is subject to the same rules of law as any other crime.” Under this rule we need not consider whether the crimes charged, and of which respondent was found guity, are infamous under the laws, and the decisions of the United States Supreme Court, cited by the respondent. That court, and all other courts of final resort, so far as we are aware, have classed offences against the various laws of the
It is further contended that the law under consideration cannot be a police regulation because it requires the court, on conviction for a second offence, to imprison the convict not less than a month nor more than a year. The statute of Kansas under consideration, in Mugler v. Kansas, supra, gave the court power to fine or imprison on either the first, second or subsequent conviction, limiting the time on the first conviction from twenty to ninety days, and on the second conviction from sixty days to six months, and on every subsequent conviction from three months to one year. The fines
“If a person by himself, clerk, servant or agent, sells, furnishes or gives away, or owns, keeps or possesses with intent to sell, furnish or give away intoxicating liquor or cider, in violation of law, he shall forfeit for each offence to the state, upon the first conviction, not less than five nor more than one hundred dollars, and may also be imprisoned, in the discretion of the court, not more than thirty days; upon second and each subsequent conviction, not less than ten nor more than two hundred dollars for each offence, and shall also be imprisoned not less than one month nor more than one year.”
R. L., 3803, provides that prosecutions maybe had before the county court,'or a justice of the peace, on complaint of the grand juror, or information of the state’s attorney. R. L., 3859, prescribes the form of a complaint or information, the essential of which is, “that.......of........on the.......day of...........at........did at
When this form of complaint or information was first prescribed, some prosecuting officers drew the information with a hundred or more counts for selling, as many for furnishing and as many for giving away. This only enhanced the costs and the court held that it was unnecessary, that the separate counts furnished the respondent no additional information except the days on which the offences were charged were varied, but held that under this complaintthe respondent was entitled to a specification, or bill of particulars, setting forth as well as the prosecuting officer w.as able, the claimed offences for which he should ask a conviction on the trial. State v. Conlin, 27 Vt. 323; State v. Freeman, 27 Vt. 525; State v. Bacon, 41 Vt. 532; State v. Rowe, 43 Vt. 267; State v. Davis, 52 Vt. 376; State v. Wooley, 59 Vt. 357. In 1858 the legislature provided that but one count should be required and allowed for in the taxation of costs. The court also held that the state must be confined, on the trial, to the offences specified, State v. Rowe, supra, but that the court had the power, when it would work no disadvantage to the respondent, to allow the specifications to be amended. Uhder these conditions the trials of these causes have gone on for nearly forty years without special complaint, inconvenience or hardship, certainly none which has successfully appealed to the legislature for modification. In administering the law this court held that every traversable fact must be alleged with time and place, and without such allegation the information was bad. States. Kennedy, 36 Vt. 563; State v. O’Keefe, 41 Vt. 691. It also held that if the words “ at divers times” were omitted, but one offence could
It is now contended that these decisions are erroneous ; that the prescribed form is in the disjunctive and authorizes the charging of but one class of the offences, either a sale, a furnishing or a giving away. This contention assumes that a sale of intoxicating liquor, under the statute, is a different offence from furnishing it or giving it away. But this is not true. The thing prohibited consists in providing intoxicating liquor contrary to law. It may be done in, any one of the three ways specified. A sale, a furnishing, a giving away of intoxicating liquor, each, is the prohibited provision of it aimed to be suppressed by the statute. The quality and magnitude of the offence is the same, the penalty and mode of enforcement the same, in whichever of the three ways it is committed. The form of the prescribed complaint, that the accused “did sell, furnish or give away,” etc., indicates that, with the words ‘‘ at divers times ” omitted, but one offence against the statute, committed in one of the ways specified, disjunctively, was intended to be charged, as held in State v. Janes, supra. But every transaction violating this law comes within one of these terms. The prosecutor is confined to a single count. He must frame it to meet the varying phases of his proof. Without the words “ at divers times” it charges but one offence. Whether the complaint charges the sale, furnishing and giving away conjunctively or disjunctively, if a sale is shown, the other words are surplusage, and vice versa. With the words “ at divers times” added, it gives notice that more than one, or many offences, may be claimed to be shown at the time and place specified. It is not unlike the common count in assumpsit for goods sold and delivered, single, but many different sales may be shown under it. But if double, duplicity is not reached by a motion in arrest of judgment.
“In criminal proceedings the joinder of different offences of the same degree in an indictment does not render the proceeding defective, though it is a matter of discretion in the court, on motion to quash an indictment so framed.” i Chitty Pl. 201; The King v. Kingston, 8 East 41; Young et al. v. The King, 3 D. & E. 98.
The last case, an indictment for obtaining goods under false pretences, against the statute, where the sentence was transportation for seven years, was held to be a misdemeanor, and that the indictments need not meet the requirements of the common law, provided it met those of the statute. The constitution of the state, its provision for a legislature to enact laws, the committal to it of the exclusive right and power to govern and regulate the internal police of the state, as well as the statutes of the state, proceed upon the theory that the state has the right and power to change and vary, at its pleasure, both in criminal and civil matters, the methods of procedure, so long as it does not invade the fundamental rights of the citizen reserved by the constitution. It does not, as some seem to think, tife up the legislature, to follow common law methods of procedure, even in criminal cases. But it may be helpful to ascertain what the common law required. It had no different rule as to the definiteness of pleadings in criminal, than in civil matters. Says Mr. Chitty, in 1 Chitty Pl. 213:
“The observations of Lord Chief Justice DeGrey on the structure of an indictment are very forcible and equally applicable to the pleadings in civil actions; the charge must*150 contain such a description of the injury or crime that the defendant may know what injury or crime it is which he is called upon to answer, that the jury may appear to be warranted in their conclusion of guilty or not guilty, upon the premises delivered to them, and that the court may see such a definite injury or crime that they may apply the remedy or the punishment which the law prescribes. The certainty essential to the charge consists of two parts, the matter to be charged and the manner of charging it.”
This extract is taken from the learned judge’s opinion delivered in the house of lords in Rex v. Horne, Cowper 672. It is a celebrated case which grew out of our revolution, was carefully tried and thoroughly considered both in the trial court by Lord Mansfield and in the house of lords. The learned judge further says :
“As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed, must be set out and all beyond are surplusage. * * * Secondly, as to the manner of making the averment. There are cases where a direct and positive averment is necessary to be made in specific terms : as where the law has affixed and appropriated technical terms to describe a crime, as in murder, burglary and others. It is likewise true that in all cases those facts which are descriptive of the crime must be introduced upon the record by averments in opposition to argument and inference.”
Applying these clearly expressed rules to the case at bar. The offence created by the statute is the provision of intoxicating liquors without the authority of law either by a sale, furnishing or giving away. There are no circumstances necessary to be set out to constitute either of these acts an offence. The terms of the statute as clearly import the prohibited offence as any terms can. The offence is neither heightened nor lessened by, nor dependent upon, the kind or amount of intoxicating liquor sold, nor upon the person to whom the sale, furnishing or giving away is made, nor upon the amount of money received, ‘nor upon whether made by the respondent or by some one for him. None
It is not an ancient crime which has been, from time immemorial, clothed in special terms which, by long use, have become the most apt and definite ones to describe the exact crime. The statute sometimes prescribes the punishment of a common law crime without defining it, or creates an of-fence and prescribes no form for an information. In such cases it is well held that the common law requirements in charging it must be met. By statute, enacted in 1787 and continued since that time, R. L., 689, the common law, when applicable to the local situation and circumstances and not repugnant to the constitution or laws, has been the law in this state, but not otherwise. But by this statute the common law is not in force, in charging a statutory crime created in clear, definite terms, with a prescribed form for charging it in the terms of the statute. It is sufficient in such a case to follow the prescribed form. The respondent contends that the prescribed form is defective in that it does not require the names of the persons to whom sales are claimed to have been made to be set forth; that sales must be made to some person. But this contention is based on
“On both sides they seem supported by a considerable weight of reasoning. * *' * Undoubtedly identification may be made sufficiently clear to satisfy the demands of legal principles without the name.”
Without doubt the difference in the decisions is controlled to some degree, at least, by the difference in the language of the statutes creating the offence. It is also contended that the particulars of the kind of liquor, price, and name of the person to whom sold, should be set forth in the information, both to apprise the respondent of the evidence he has to meet, and to have the record protect him from a second conviction for the same offence. It is never necessary for the state'to disclose what is merely its proof of the commission of the offence charged in the information. If the record does not itself identify the offence or offences for which conviction has been had, on the trial of a subsequent prosecution, such identification may be made by parol testimony. If these particulars were set out in the information, resort might have to be had to parol proof to identify the offence for which .conviction was had. It might occur that the same respondent made more than one sale of the same kind and quantity of liquor, to the same person, at the same price, at the same place on the same day. Besides by the common law it always has been held that the prosecutor
The respondent’s counsel further contends that the legislature in other parts of this law, not brought under consideration by his motion, by enacting that this class of cases shall stand for trial the first term, that a continuance shall not be allowed without cause shown, and that a nolle prosequi or discontinuance shall not be entered without cause, and only with the consent of the court, has invaded the province of the court so that the respondent under them does not have a common law jury trial, and for that reason the whole law is unconstitutional. We do not understand that any of these provisions trench upon the province of the court. The legislature is to establish courts and define their jurisdiction and powers in accordance with the constitution. All cases, unless under some rule of court, which the legislature has either expressly or impliedly authorized the court to make, stand for trial the first term of the court, and cannot be continued or discontinued without the permission of the court. No absolute or discretionary power of the court is taken away by these provisions. This class of cases is not exceptional in their manner of trial. They are proceeded with like all other cases. The selection and empanelling of the jury, the rules of evidence, burden of proof, and procedure in the trial, is the same as in all other criminal cases. What has been said in regard to the scope of the information, aided by specifications, to which the respondent was entitled as a matter of right, and which were furnished to him, and in regard to the order and manner of his trial, makes the respondent’s trial a trial by “due process of law,” or “in accordance with the law of the land,” within the varying
IV. He further contends that the statute is unconstitutional because it authorizes the requirement of excessive bail, the imposition of fines excessive and disproportionate to the offence alleged, and the infliction of cruel and unusual punishment. The only punishment authorized is fine and imprisonment in the house of correction. The longest time of imprisonment proper, for a second conviction, is one year, and for failure to pay the fine imposed, however large, and for how many so ever offences, could not exceed three years. No. 78, Acts of 1892. This state has no constitutional provision rendering a punishment by fine and imprisonment at hard labor unusual and cruel. Section 37, chapter 2, of the constitution of the state is :
“To deter more effectually from the commission of crimes, by continued visible punishments of long duration, and to make sanguinary punishments less necessary, means ought to be provided for punishing, by hard labor, those who shall be convicted of crimes not capital, whereby the criminal shall be employed for the benefit of the public, or for the reparation of injuries done to private persons.”
It is claimed that the eighth amendment of the constitution of the United States is applicable, and that the punishment is cruel and unusual under that. That article has been, so far, held to be applicable only to punishments under the laws of the United States. Barron v. Baltimore, 7 Pet. 243; Pervear v. Massachusetts, 5 Wall. 475; O’Neil v. State of Vermont, 144 U. S. 323. In the case last named Justice Blatchford, in the opinion of the court, says: “ Moreover, as a federal question, it has always been ruled that the 8th amendment to the constitution does not apply to states.” Justice Field, in a dissenting opinion, holds that the fourteenth amendment has made the eighth amendment applicable to the states. But such is not the holding of the court in that case. In this case the longest term of imprisonment proper could not exceed one year, and the greatest fine could not exceed three hundred dollars, and on failure to pay the fine the imprisonment could not exceed three years. In the O’Neil case the imprisonment proper was one month, but the number of offences was so large that the fines amounted to a large sum and, if unpaid, the imprisonment would be over fifty-four years for him to work out the fine in the house of correction. It was only the aggregation of imprisonment that Justice Field complained of as cruel and unusual. Non constat that he would regard the extreme limit of punishment in this case as cruel and unusual. Considering the magnitude of the evil sought to be restrained, the fact that the only motive for committing the offence is cupidity, or desire for pecuniary gain to be acquired by taking advantage of the weakness of fellow citizens, weighed down if not overborne by pernicious habit, we do not think the punishment cruel or unusual. The
V. It is further contended that the statutes under consideration are repugnant to this clause in the fourteenth amendment to the constitution of the United States :
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law ; nor deny to any person the equal protection of the laws.”
This, in terms, applies to the states. No claim is made, nor can be made, that these statutes apply to one class of citizens of this state, or of the United States, more than to all. Whoever, of whatever class, commits the prohibited acts within the state, is an offender subject to prescribed penalties. We have already considered whether any person under them was or could be “deprived of life, liberty or property without due process of law.” What is due process of law is considered at length, and the common law and state decisions and the prior decisions of the United States Supreme Court brought together and reviewed in Hurtado v. California, 110 U. S. 499. The result there reached is summarized by the court in its opinion in Leeper v. Texas, 139 U. S. 462, as follows :
“That, by the fourteenth amendment, the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons, or classes of persons, of equal and impartial justice under the law; that law in its regular course of administration through courts of justice is due process, and when secured by the laws of the state the constitutional requirement is satisfied; and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the*158 established principle of private right and distributive justice.”
To like import in Fong Yue Ting v. United States, 149 U. S. 698. In this case it was held that congress might change the burden of proof and prescribe the testimony required to remove it. The respondent concedes, as in reason he must, that the privileges and immunities of citizens of the United States which the states are prohibited from making or enforcing any law to abridge are the two classes which have already been considered.
Judgment that respondent takes nothing by his exceptions and that his motion in arrest of judgment is overruled.