State v. Hoffman
46 Vt. 176
Vt.
1873
Check Treatment

*180The opinion of the court was delivered by

Peck, J.

The motion to dismiss is founded on the Gen. Sts. ch. 31, § 2, which provides that “ all prosecutions of a criminal nature hereafter commenced before a justice of the peace, within the jurisdiction of such justice to try and determine, shall be tried in the town where the offence was committed, or in the town where the x-espondent resides.” The respondexit was brought before the justice in the town of Wheelock, and there tried, and the papers indicate, and no question is made but such is the fact, that the respondent then resided in the town of Lyndon, and that the offence, if committed, was committed in Lyndon. This prosecution against this x-espondent, is under § 33, ch. 94, Gen. Sts., providing for the arrest of a person “ found in such a state of intoxication as to disturb the public or doxxxestic peace and tranquility,” and as soon as capable of testifying propoxdy in a court of justice, rcqxxiring him to disclose on oath, before a justice of the peace, the place where and the person of whom the liquor so producing intoxication was obtained, and all the circumstances attending it. One Eredex-ick Willey, having been axmested in such state of intoxication in the town of Wheelock, and there brought before a justice, disclosed that the liquor whereby such intoxication was produced, was obtained of this respondent, Hoffman, at Lyndon, whereupon the justice, in pursuance of the further provision of the statute, and according to the form therein prescribed, caused this respondent to be brought before him, to answer to the charge so preferred against him. This proceeding against this respondent is not an original prosecution for selling intoxicating liquor, controlled as to place.of trial, by the general statute x’equii'ing prosecutions fox-criminal offences before a justice, to be tried in the town where the offence is committed, or in the towxx where the respondent resides. It is an incident of the primary proceeding already instituted or pending against the person intoxicated; and, as to place of trial, follows that proceeding. The justice having the intoxicated person before him, and having procured his disclosure according to the statute, is required, forthwith, to issue his warrant, and cause the person so selling, furnishing, or giving away *181said liquor, to be brought forthwith before him, &c. It does not require the justice to go to the town where the offender is charged with having supplied the intoxicating liquor, nor to inquire as to the town in which he resides, and adjourn his proceedings, already commenced and in progress, to one or thé other of those towns. The accused is to be brought to the justice ; the justice is not to go to the accused, to the town where he resides, or to the town in which he supplied the liquor. The town of Wheelock was the proper place for the commencement of the proceeding, and for the hearing as to Willey, who was there arrested under this section of the statute; and the form of proceeding prescribed by the statute, shows that the proceeding against the party charged by him with furnishing him the liquor, is but a branch of the same proceeding. No such complaint is required as is prescribed in the common case of prosecutions for the unlawful selling of intoxicating liquor; but the trial is had upon the warrant issued by the justice, reciting the proceedings before him, and that the person arrested “ has disclosed that the liquor whereby such intoxication was produced, was obtained from” the person against whom the warrant issues — naming him — and thereby commanding him to be arrested and brought forthwith before him, the justice, “ to make answer to the charge so preferred against him.” It is evident that no change of venue in the midst of such proceeding, is required by the statute, or was contemplated by the legislature. The provision, that such proceedings shall be had before such justice, as if the offender had been regularly prosecuted before such justice, was not designed to change the place of trial. It is suggested that, under this construction, a justice might try a party in one county for an- offence committed in another county. But if a justice can not do so under this section of the statute, then an offender might, by sales of intoxicating liquor in one county, by the intoxication of his customers, disturb the public and domestic peace and tranquility of another county, and escape any prosecution therefor under this section of the statute; as the prosecution must be before the same justice before whom the person intoxicated discloses, and the justice cannot go out of his county and there try a case. It is true, in such case, the party thus .offending *182might be prosecuted in another mode, under another provision of the statute, in the county where the offence was committed; but, if in such case he is liable to be prosecuted, either in the one county or the other, at the election of the state, it is not the only case whore a party, striking a deadly blow in one county, and the fatal result occurs in another, may be tried in either. Without reference to the question made as to the waiver of the ground of the motion by the continuance, the motion was properly overruled.

The exception to the rejection of evidence to contradict the state witness, cannot be sustained; the matters drawn out on cross-examination, were collateral to the issue, and too remote to allow of the inti’oduction of other evidence to contradict it.

The proceeding' under the section of the statute in question, as said by the county court, is but another method of bringing the respondent into court for a violation of the law against selling, furnishing, and giving away intoxicating liquor contrary to the statute. But the court erred in giving it the same scope in relation to the number and extent of the offences that might be shown under it, as in the common mode of prosecuting such offences; as in this respect, the proceeding is unlike a complaint under the form prescribed by the statute for the common mode of prosecutions for such violations of the statute, alleging offences committed “ at divers times.’7 A prosecution for such offences in this mode in question, under § 33, is based upon the prior proceeding of arresting the intoxicated person, and procuring his disclosure; and is incident to it, and limited by it. The offences which come within the scope of a prosecution under this section, do not extend beyond what the person so found intoxicated is by the statute required to disclose ; that is, the sale or sales, furnishing, or giving away of the liquor so producing intoxication. The language of the statute imports this. The statute provides that the justice, after procuring such disclosure, in case he shall adjudge from the evidence that the sale, furnishing, or giving away of said liquor, was an offence, &c., shall forthwith issue his warrant, &c., and cause the person so selling, &c., to be brought forthwith before him, and that “ such proceedings shall be had in the case, in all inspects, as would have been had if the person so offending had *183been regularly prosecuted before such justice for such offence, in the manner prescribed in this chapter.” Such offence means, the offence of selling, furnishing, or giving away the intoxicating liquor that caused the intoxication. The statute does not say that the same proceedings shall be had as if the person had been prosecuted for such offence and others. If from the provisions of the statute thus far, there would seem to be any doubt as to this construction, the form of the warrant prescribed by the statute to be issued, and upon which the person thus charged is to be tried, removes that doubt. It recites the arrest of the person in a state of intoxication, &c. — naming him — that he “ has disclosed that the liquor whereby such intoxication was produced, was obtained from,” — the person against whom the warrant issues — naming him — that it appears that the furnishing of such liquor was an offence, &c., and requires the party to be arrested and brought before the subscribing authority, <fcc., “ to malte answer to the charge so preferred against him.” The warrant cannot be construed to embrace offences beyond the scope of its import, and is limited as already stated. But this abstract error in the ruling of the court as to what might be shown under this proceeding, does not vitiate the verdict, as it is apparent that no proof was introduced of any offences not within its scope. This disposes of all the questions relied on by defendant’s counsel in argument.

Judgment that there is no error in the proceedings of the county court; that the respondent take nothing by his exceptions ; and that he pay a fine of twenty dollars and costs of prosecution.