State v. Munger

| Vt. | Feb 15, 1843

The opinion of the court was delivered by

Bennett, J.

Under the motion in arrest, several objections are urged against the sufficiency of this indictment,which we will first consider. The general requisites of an indictment require it to be framed with so much certainty, as to identify the offence, that the grand jury may not find a bill for one offence, and the prisoner be tried for another ; and that he may know what accusation he has to meet, and the jury be able to give a verdict upon it, and the court to see such a definite crime, that they may apply the punishment which the law has prescribed, and the prisoner be able to plead his conviction or acquittal, in bar of a second prosecution for the same offence. It is said that the indictment is bad, because it is not averred to whom the liquor was sold, or that the person or persons are unknown. It is of no importance that the indictment should contain such an averment. The offence complained of, works no injury upon the individual rights of the person to whom the sale was made, and none are supposed to be violated. It has no analogy to an indictment for theft, to which it was likened by the counsel, where the violation of private right enters into the very essence of the crime. The case of the Commonwealth v. Maxwell, 2 Pick. R. 139, which has been much relied upon, is not in point. The indictment, in that case, was upon a statute which inflicted a specific penalty upon an inn-holder who should entertain, on the Lord’s day, any persons who were not travellers, strangers, or lodgers; and the penalty was a fixed sum for each individual so entertained. In some of the counts in the indictment, it was alleged the respondent had entertained certain individuals, and in others, divers persons, &c. It was no objection, in that case, that the names of the persons were not given, but the want of the number, without which, as the statute gave a per capita penalty, the court, upon conviction, could not know what sentence to pass.

The statute upon which this indictment is founded, gives but one penalty for a single violation, and it is immaterial, whether the sale is to one, or divers individuals.

It is said the indictment is bad, for the want of an averment that rum, brandy and gin were spirituous liquors, but this objection is without foundation. Rum, brandy and gin are different species of spirituous liquor, considering that the genus; and the words, in and of themselves, import them to be spirituous liquors. Where the words have a settled, uniform and known meaning, and are universally understood as importing certain species of spirituous liquors, I know of no rule of pleading, that requires an averment, that they belong to their appropriate genus.

It is said there is no sufficient negation that the sale was without license. It is true, as was held in the case of the State v. Sommers, 3 Vt. R. 157, that the negation must be broad enough to cover all the sources from which a license might have been obtained. If it does it is sufficient. Unlike the case of State v. Sommers, the first count alleges that the respondent sold one gill of rum, &c.,not having a license to sell said liquors as aforesaid.

Here, the words of negation are general, and without restriction ; and we think they relate to the time of the sale, and not, as has been contended, to the time of finding the bill. If there was otherwise doubt, yet when the pleader adds to his words, denying that the respondent had any license to sell said liquors, the words “as aforesaid,” these latter words clearly point to the time of sale.

In the second count, the allegation is, that, not having a license to sell rum &c., by the half-gill, gill, or half-pint, the respondent did sell rum, &c., by the gill, half-gill and half-pint. In this count, no question is made, but what the time of the negation is the time of the sale, and the words of negation, relative to the quantity of the liquor which the respondent had no license to sell, are coextensive with the quantity which he is charged to have sold.

It is objected, that it is not alleged that the offence was committed with force and arms.

At the common law, in indictments for offences, which amounted to an actual disturbance of the peace, and were attended with forcible injuries, as an assault and battery,, false imprisonment, and the like, the words vi et armis were held necessary; but in a case like the present, it would be absurd to require them,,if not to use them ; as much so as in indictment for libels, conspiracies, and the like. In such cases, they never were held necessary. 3 Bac. Ab. 564.

It is said the second count is bad, on the ground that the offence is laid with a continuando.

But it is to be remarked, that a single and distinct offence is charged to have been committed on a day certain ; and what follows by way of a continuando, is clearly bad and would be insufficient of itself to sustain a verdict. But the question now is, does the allegation of the commission of the offence, at divers other times between the 1st of August, 1840, and the time of the presentment of this bill, vitiate this count, so that as to this, the motion in arrest should prevail. The whole of this averment may be stricken out, and yet leave the count a perfect one. It is in no way inconsistent with the other facts alleged. It is altogether superfluous and useless, and may well be rejected as surplusage, according to the maxim, “ utile per inutile non vitiatur.” If an offence, sufficient to maintain an indictment, be well laid, it is good^enough, although other facts be ill laid. 3 Jacobi L. D. by Tomlins, 410.

On the whole, then, we think the motion in arrest was properly overruled.

In regard to the admissibility of the bill of goods sold to Samuel Stocker, there can be no doubt. It was proved that the respondent was one of the firm of Page & Munger, and that the bill was made out by the respondent himself. It contains sundry charges for the sale of rum and brandy by the half pint, and must be regarded as a direct admission by the respondent of such sale. There is nothing in the objection that Stocker should have been produced as a witness, or that it does not appear from the bill, that any sale was made after the first day of August, 1840. Stocker’s testimony was no better in the degree, than the admissions of the respondent, and, perhaps, might have been less satisfactory. And the government were not bound to prove the sale on the precise day alleged in the indictment. Whether the evidence, in the opinion of the jury, would have been sufficient, is quite another question. It was undoubtedly necessary that the jury should have been satisfied that this respondent was engaged, personally, in the sale; and that this testimony had a tendency to prove it, no one can doubt» The court in their instructions to the jury, told them, if they believed the bill to have been made out by the respondent, it would be evidence upon which they could find the respond dent guilty.

The respondent, in making out, and receiving pay upon, the bill as one of the partners, thus clearly recognized the sale as having been in fact made by the firm, and it is evidence to the jury, tending to prove he was personally concerned in it. The court, in effect, refer its sufficiency to the jury. The charge is not given, at length, and we are not to presume that adequate instructions were not given. We do not see that there was error in the court’s telling the jury they could, upon such'evidence, find the respondent guilty. The party excepting must state so much of the proceedings below as show affirmatively, that error has intervened.

The result is, the respondent takes nothing by his exceptions. He was sentenced to pay a fine of $20 and costs of prosecution.